Mazo v. Way

Decision Date30 July 2021
Docket NumberCivil Action No. 20-08174 (FLW)
Parties Eugene MAZO and Lisa McCormick, Plaintiffs, v. Tahesha WAY, in her official capacity as New Jersey Secretary of State, Christopher Durkin, in his official capacity as Essex County Clerk, E. Junior Maldonado, in his official capacity as Hudson County Clerk, Joanne Rajoppi, in her official capacity as Union County Clerk, Paula Sollami Covello, in her official capacity as Mercer County Clerk, Elaine Flynn, in her official capacity as Middlesex County Clerk, and Steve Peter, in his official capacity as Somerset County Clerk, Defendants.
CourtU.S. District Court — District of New Jersey

Walter M. Luers, Cohn Lifland Pearlman Herrmann & Knopf LLP, Saddle Brook, NJ, for Plaintiffs.

Dominic Larue Giova, New Jersey Attorney General, Division of Law, Trenton, NJ, for Defendant Tahesha Way.

Michael L. Dermody, Office of Hudson County Counsel, Administration Building Annex, Jersey City, NJ, for Defendant E. Junior Maldanado.

Moshood Muftau, Union County Counsel, Administration Building, Elizabeth, NJ, for Defendant Joanne Rajoppi.

Paul Richard Adezio, County of Mercer, Trenton, NJ, for Defendant Paula Sollami Covello.

Michael Scott Williams, Middlesex County Office County Counsel, New Brunswick, NJ, for Defendant Elaine Flynn.

Alan R. Ruddy, Office of the Essex County Counsel, Newark, NJ, for Defendant Christopher Durkin.

Anthony P. Seijas, Cleary Giacobbe Alfieri Jacobs, Oakland, NJ, for Defendant Steve Peter.

WOLFSON, Chief Judge:

Eugene Mazo and Lisa McCormick ("Plaintiffs"), former candidates for Congressional seats in New Jersey, bring suit against Secretary of State Tahesha Way and County Clerks Christopher Durkin, E. Junior Maldonado, Joanne Rajoppi, Paula Sollami Covello, Elaine Flynn, and Steve Peter (collectively, "the Clerks"), alleging that Way denied their request to use certain political slogans on the primary ballot, which included the names of New Jersey incorporated associations or persons, but lacked written consent from those entities and persons, in violation of the First Amendment, and that the Clerks unconstitutionally declined to print those slogans. Plaintiffs seek to strike down N.J.S.A. §§ 19:23-17 and 25.1 ("the Slogan Statutes") as a result. Defendants now move to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Clerks primarily contend that they had no say in whether Plaintiffs could use their preferred slogans, and no discretion to print them otherwise.1 Way contends that the Court lacks subject matter jurisdiction because the 2020 primary is over, the 2022 primary is some time away, and the Slogan Statutes are constitutional under any standard of scrutiny. For the following reasons, I GRANT both motions to dismiss.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mazo and McCormick ran for Congress in 2020 but lost in the primaries. Am. Compl., ¶¶ 14-15, 23, 25. At issue are New Jersey's Slogan Statutes. N.J.S.A. § 19:23-17 permits primary candidates to request a six-word slogan to appear on the ballot next to their names. The slogan must "be for the purpose of indicating either any official act or policy to which he is pledged or committed, or to distinguish him as belonging to a particular faction or wing of his political party." Id. But "no such [ ] slogan shall include or refer to the name of any such person or any incorporated association of this State unless the written consent of such person or incorporated association of this State has been filed with the petition of nomination of such candidate." Id. If a candidate's slogan includes a name but lacks consent, it cannot be printed. N.J.S.A. § 19:23-25.1.

Both candidates allege that they could not use their preferred slogans in 2020. Mazo originally asked to use "Essex County Democratic Committee, Inc.," "Hudson County Democratic Organization," or "Regular Democratic Organization of Union County." Am. Compl., ¶ 37. State officials2 rejected them all, informing Mazo that he needed to obtain consent from the named groups or else his nomination petition would read "NO SLOGAN." Id. ¶ 38. Mazo ultimately used a slogan authorized by an association he incorporated. Id. ¶ 39. McCormick originally asked to use "Not Me. Us.," which apparently names an organization in New Jersey, but learned that she could not do so without obtaining consent from the chairperson. Id. ¶¶ 41-42. She then sought to use "Bernie Sanders Betrayed the NJ Revolution," but never obtained permission from Bernie Sanders, so she could not use that slogan either. Id. ¶ 43-44. She settled for "Democrats United for Progress." Id. ¶ 45. Mazo and McCormick assert in their verified Amended Complaint that they will run for Congress again in 2022 using their preferred, though rejected, slogans. Id. ¶¶ 26, 40, 46.

New Jersey held its primaries on July 7, 2020. Id. ¶ 24. Five days before the election, Plaintiffs filed the instant lawsuit. ECF No. 1. On October 23, 2020, they filed an Amended Complaint, which contains one Count under the First and Fourteenth Amendments. ECF No. 45. Plaintiffs contend that the consent requirements in N.J.S.A. §§ 19:23-17 and 25.1 are an unconstitutional restriction on free speech and seek injunctive and declaratory relief.3 Am. Compl., ¶¶ 48-68.

Rajoppi moved to dismiss on December 9, 2020, arguing that the Clerks are improperly named as defendants because they lack the authority to enforce the Slogan Statutes or depart from decisions made by State officials. Raj. Br., at 7-9. In short, the Clerks contend, they merely print what the Secretary approves. Way moved to dismiss on December 10, 2020, arguing that Plaintiffs’ claims are moot as they relate to the 2020 primary because it is long over, yet unripe as they relate to the 2022 primary because it is speculative that Plaintiffs will use the same slogans without authorization if they run again. Way Br., at 8-11. Regardless, Way argues, the Slogan Statutes do not run afoul of the First Amendment whatever the standard of scrutiny is: the State has a compelling interest in preserving election integrity and preventing voter deception, which the Statutes advance by ensuring that candidates have a legitimate relationship with any person or group they name, and an equally compelling interest in protecting the associational rights of anyone named in a slogan. Way Br., at 25-27. The Slogan Statutes are also narrowly tailored to fit these ends, Way contends, because they do not completely ban any speech, just the non-consensual use of some names. Id. at 28.

Plaintiffs oppose both motions. They contend that the Clerks "refused to print the slogans" despite being independent, elected officials who are "accountable for the content and format of the ballots" and operate beyond "the Secretary's control." Pl. Br. I, at 6-9, 10-13. Next, Plaintiffs contend that their case is both not moot and ripe. They reason that, because the nomination process is compressed to a couple of months and they expect to run again in 2022 with the same slogans, the harm they suffered is "capable of repetition yet evading review." Pl. Br. II, at 9-10. Finally, according to Plaintiffs, the Slogan Statutes are content based speech restrictions subject to strict scrutiny, which are not narrowly tailored to fit the State's asserted interests. Id. at 19-25. Plaintiffs suggest that the State could place a general disclaimer on ballots, alerting voters to the fact that slogans are unverified, as a less restrictive means of achieving the same ends. Id. at 25.

II. LEGAL STANDARD

Under Fed. R. Civ. P. 12(b)(1), a court may dismiss a claim if there is no subject matter jurisdiction. Ballentine v. United States , 486 F.3d 806, 810 (3d Cir. 2007). A Rule 12(b)(1) motion can raise a facial attack or a factual attack, which determines the standard of review. Const. Party of Pennsylvania v. Aichele , 757 F.3d 347, 357 (3d Cir. 2014) (citations omitted); In re Horizon Healthcare Servs. Inc. Data Breach Litig. , 846 F.3d 625, 632 (3d Cir. 2017). On a facial attack, courts "only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff," since the motion contests the sufficiency of the pleadings. Gould Elecs. Inc. v. United States , 220 F.3d 169, 176 (3d Cir. 2000) (quotations omitted); Davis v. Wells Fargo , 824 F.3d 333, 346 (3d Cir. 2016).

On a factual attack, courts may "consider evidence outside the pleadings," such as affidavits, since the motion contests the underlying basis for jurisdiction. Gould Elecs. Inc. , 220 F.3d at 176 (citing Gotha v. United States , 115 F.3d 176, 178-79 (3d Cir. 1997) ); Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977) ("[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims."); CNA v. United States , 535 F.3d 132, 139 (3d Cir. 2008) ("[A] factual attack concerns the actual failure of [plaintiff's] claims to comport with the jurisdictional prerequisites.") (quotations and citation omitted). In such circumstances, the court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case," Mortensen , 549 F.2d at 891, but "must be careful [ ] not to allow its consideration of jurisdiction to spill over into a determination of the merits of the case, and thus must tread lightly." Kestelboym v. Chertoff , 538 F. Supp. 2d 813, 815 (D.N.J. 2008) (quotations and citation omitted). The proponent of jurisdiction bears the burden to prove that it exists throughout the litigation. Mortensen , 549 F.2d at 891.

A court may also dismiss an action under Fed. R. Civ. P. 12(b)(6) if a plaintiff fails to state a claim upon which relief can be granted. When evaluating a Rule 12(b)(6) motion, I must "accept all factual allegations as true, construe the complaint in the light most favorable...

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