Southern NJ Newspapers v. STATE OF NJ, ETC., Civ. A. No. 81-174

• Decision Date: 29 January 1982
• Docket Number: 81-175.,Civ. A. No. 81-174
• Citation: 542 F. Supp. 173
• Parties: SOUTHERN NEW JERSEY NEWSPAPERS, INC., a corporation of the State of New Jersey, Plaintiff, v. STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION, Oliver D. Kee and George J. Tanger, Defendants. WOODBURY DAILY TIMES COMPANY, INC., a corporation of the State of New Jersey t/a the Gloucester County Times, Plaintiff, v. The STATE OF NEW JERSEY, Department of Transportation, Louis J. Gambaccini, Commissioner of the Department of Transportation, Oliver D. Kee, and George J. Tanger, Defendants.
• Court: U.S. District Court — District of New Jersey

542 F. Supp. 173

SOUTHERN NEW JERSEY NEWSPAPERS, INC., a corporation of the State of New Jersey, Plaintiff, v. STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION, Oliver D. Kee and George J. Tanger, Defendants.

WOODBURY DAILY TIMES COMPANY, INC., a corporation of the State of New Jersey t/a the Gloucester County Times, Plaintiff, v. The STATE OF NEW JERSEY, Department of Transportation, Louis J. Gambaccini, Commissioner of the Department of Transportation, Oliver D. Kee, and George J. Tanger, Defendants.

Civ. A. Nos. 81-174, 81-175.

United States District Court, D. New Jersey.

January 29, 1982.

COPYRIGHT MATERIAL OMITTED

Robert T. Lehman, Archer, Greiner & Read, Haddonfield, N. J., for Southern New Jersey Newspapers, Inc.

Thomas H. Ward, Woodbury, N. J., for Woodbury Daily Times Company, Inc.

Irwin I. Kimmelman, Atty. Gen. of N. J. by Patricia D. Connelly, Deputy Atty. Gen., State of N. J., Dept. of Transp., Trenton, N. J., for defendants.

BROTMAN, District Judge.

In this case, the court is faced with a confrontation between a newspaper's exercise of its First Amendment rights and a state's exercise of its police power. Plaintiff Southern New Jersey Newspapers, Inc., and plaintiff Woodbury Daily Times Company, Inc., contemporaneously instituted civil rights actions seeking injunctive and declaratory relief pursuant to 42 U.S.C. § 1983¹ and 28 U.S.C. § 2201,² respectively. Through these actions, plaintiffs have sought to prevent defendants from relying on and applying N.J.S.A. 27:7A-11 et seq.³ and N.J.S.A. 27:5-1 et seq.⁴ to remove plaintiffs' newspaper honor boxes⁵ from New Jersey State Highway rights-of-way.⁶ Jurisdiction of this court is grounded upon 28 U.S.C. § 1343(3).⁷

Motions for temporary restraining orders were granted and, on February 26, 1981, a hearing was held to determine whether or not plaintiffs' motions for preliminary injunctions should be granted. At the close of the hearing, the court ordered the restraints to remain in effect pending its decision. On June 29, 1981, the court, with the agreement of all parties, entered two orders: (1) consolidating the two actions, pursuant to Fed.R.Civ.P. 42(a); and (2) advancing and consolidating the trial of the action on the merits with the hearing of the applications for preliminary injunctions, pursuant to Fed.R.Civ.P. 65(a).⁸ In accordance with Fed.R.Civ.P. 52, the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff Southern New Jersey Newspapers, Inc. is a corporation of the State of New Jersey, having its principal place of business on Cuthbert Boulevard, Cherry Hill, New Jersey, and is the publisher of a newspaper known as the "Courier-Post."

2. Plaintiff Woodbury Daily Times Company, Inc. is a corporation of the State of New Jersey, having its principal place of business at Parkway Avenue, Trenton, New Jersey, and is the publisher of a newspaper known as the "Gloucester County Times."

3. Defendant State of New Jersey Department of Transportation is a department of the government of the State of New Jersey having responsibility for certain streets, roads, and highways within the State of New Jersey.

4. Defendant Louis J. Gambaccini is the Commissioner of the New Jersey Department of Transportation.

5. Defendant Oliver D. Kee is the regional maintenance engineer for Region 4 of the State of New Jersey Department of Transportation, and at all times relevant hereto has been its agent and employee.

6. Defendant George J. Tanger is the Regional Sign Coordinator for the State of New Jersey Department of Transportation and at all times relevant hereto has acted as its agent and employee.

7. Both the Courier Post and the Gloucester County Times are distributed through two methods: home delivery and single copy sales. Single copy sales are necessary since all persons do not desire home delivery.

8. One method of distributing single copies is through coin operated vending machines which are known in the newspaper business as "honor boxes." An honor box, as the term is used here, is a metal machine, or box, approximately four feet high by twenty inches wide by ten inches deep which is constructed to permit the placing of concrete or some other heavy object in it for stabilization. The box may exist free standing or it may be strapped or chained to a utility pole or other standing objects.

9. An honor box permits the purchase of a newspaper on a twenty-four hour per day basis and is often utilized at locations that could not sustain a newsstand or a newsboy. The honor boxes are intended to serve pedestrians and are placed on or near sidewalks where there is heavy pedestrian traffic, usually in the area of restaurants or bus stops. It is necessary that an honor box sell, on average, between five to ten newspapers on a daily basis to be economical.

10. Honor boxes have been used in the distribution of newspapers in Southern New Jersey for at least thirty (30) years. Plaintiff Southern New Jersey currently utilizes approximately 560 boxes. Approximately 6,200 newspapers, or 27% of the Courier Post's 23,000 daily single copy sales, are sold through honor boxes. Of Sunday newspaper sales, 4,200 papers, or about 22% of the 19,000 single copy sales, are sold through the boxes. Honor boxes are particularly significant to Sunday sales since many of the single copy store outlets are closed on that day.

11. The Gloucester County Times has approximately eighty (80) honor boxes currently in use.

12. On or about December 16, 1980, defendant State of New Jersey Department of Transportation through its agent, defendant Oliver D. Kee, Regional Maintenance Engineer, Region 4, notified both plaintiffs by letters that their honor boxes located along New Jersey State Highways in Southern New Jersey were in direct violation of N.J.S.A. 27:7A-11 et seq. and N.J. S.A. 27:5-1. As to N.J.S.A. 27:7A-11 et seq., the letters made specific reference to a prohibition against placement on or overhanging the State Highway right-of-way. The letters further indicated that if the honor boxes were not removed or relocated within thirty (30) days, they would be confiscated and stored and plaintiffs would be billed $50.00, or double the cost of removal.

13. Although the letters did not specify the allegedly violative boxes, it has subsequently been disclosed that approximately eighteen (18) honor boxes of plaintiff Southern New Jersey and three (3) of plaintiff Woodbury Daily Times are located on the State Highway rights-of-way and are asserted to be illegally placed. Defendant Department of Transportation demands that the subject boxes be located off of the State's right-of-way.

14. The honor boxes in question are located either on a strip of land between a sidewalk and a curb or, where there is no strip, on a sidewalk near a curb. None of the boxes are in a street or even appear to be overhanging a curb. In addition, the opening part of the boxes typically faces away from the street. None of the boxes appears to be located in a rural area or in an area where there are no sidewalks. Most of the boxes appear to be in areas with commercial activity.

15. Each of the honor boxes in this case displays the name of the newspaper in fairly bold print on three or four of its sides. The name is visible not only to pedestrians but to motorists who are travelling along the highway.

16. Defendants have submitted an affidavit discussing possible safety hazards of the honor boxes in the rights-of-way. This affidavit is, at best, speculative and defendants have failed to produce any evidence of a more substantive nature to support these speculations. On the other hand, plaintiffs have presented evidence that their honor boxes have not been involved in any injuries, motor vehicle accidents, or other such incidents. The amount of vandalism also has been slight. Aside from the Department of Transportation's letters, there have been no complaints received by plaintiffs regarding the use of honor boxes.

DISCUSSION AND CONCLUSIONS OF LAW

Abstention

Defendants have urged the court to abstain from exercising its jurisdiction.⁹ The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction has two principal bases. As the Supreme Court has explained:

There are, of course, two primary types of federal abstention. The first, usually referred to as Pullman abstention, involves an inquiry focused on the possibility that the state courts may interpret a challenged state statute so as to eliminate, or at least to alter materially, the constitutional question presented. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976). The second type is Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 abstention, in which the court is primarily concerned in an equitable setting, with considerations of comity and federalism, both as they relate to the State's interest in pursuing an ongoing state proceeding, and as they involve the ability of the state courts to consider federal constitutional claims in that context. Citations omitted.

Ohio Bureau of Employment Service v. Hodory, 431 U.S. 471, 477, 97 S.Ct. 1898, 1902, 52 L.Ed.2d 513 (1977). There are no prosecutions pending with respect to the statute at issue and, thus, the Younger form of abstention is not applicable. See, e.g., Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505 (1974); International Society For Krishna Consciousness v. Hays, 438 F.Supp. 1077, 1080-81 (S.D.Fla. 1977); Philadelphia News., Inc. v. Borough C., etc., Swarthmore, 381 F.Supp. 228, 234 (E.D.Pa.1974).¹⁰

The defendants have not relied on Younger, but have asserted that Railroad Commission v. Pullman Co., supra, requires abstention. As noted, Pullman abstention is:

proper ... where a federal constitutional claim is premised on an

...