DORIS LIN v. THOMAS POWERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3121-07T33121-07T3

DORIS LIN,

Plaintiff-Appellant,

v.

THOMAS POWERS, individually

and in his capacity as

Director of the Monmouth

County Board of Chosen

Freeholders,

Defendant-Respondent.

_____________________________________________________________

 

Submitted October 28, 2008 - Decided

Before Judges Collester and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Monmouth

County, Docket No. DC-12250-07.

Doris Lin, appellant pro se.

Stout & O'Hagan, attorneys for respondent

(David A. Laughlin, of counsel and on the

brief).

PER CURIAM

Plaintiff Doris Lin alleged in her complaint that defendant Thomas Powers, a former Director of the Monmouth County Board of Chosen Freeholders (Board), violated her First Amendment rights during a public meeting of the Board, and she sought $10,000 in punitive damages. Plaintiff appeals from a summary judgment order dated January 16, 2008, dismissing her complaint. We affirm.

Prior to the Board's meeting on August 25, 2005, plaintiff signed up to speak during the "opportunity for anyone present to be heard" portion of the meeting. When it was plaintiff's turn to speak, she initially spoke in opposition to a deer hunt in the Monmouth County Parks, and she was not interrupted. But when she polled the freeholders on a wholly unrelated matter, involving Harry Larrison, a former freeholder who was charged with corruption but was neither indicted nor convicted prior to his death, plaintiff was not allowed to continue. According to plaintiff's transcription of the meeting, the following exchange took place after plaintiff spoke about the deer hunt:

[DORIS LIN]: On May 18th, Monmouth County Republicans issued a press release that stated, "In the wake of the recent indictments of officials of both parties, Republican Freeholders have passed resolution after resolution to make it nearly impossible for corruption to take hold in this County. The County Republican leadership has condemned corrupt officials and praised the U.S. Attorney's Office for their diligent work in rooting it out."

At a Freeholders meeting two months ago, I apologized for previously saying that the Freeholders were taking bribes. After the meeting ended, I privately approached the front and said that I should have specified Harry Larrison in my original remarks. To my astonishment, Freeholders Powers, Narozanick and Barham defended Larrison. Freeholder Narozanick argued that Larrison was never tried and convicted. Freeholder Barham said that Larrison is innocent until proven guilty, so I can't make that accusation against him. . . [sic]

POWERS: Uh, Ms. Lin, excuse me.

LIN: Yes?

POWERS: Mr. Larrison is deceased. It's over with. He never was convicted of anything. I don't believe you should be contentiously putting out his name. It's not necessary.

LIN: Well, I would like to know . . . we know what your party's press release says. So I ask you now, publicly and on the record, Freeholders Barham, Narozanick and Powers, do you condemn corrupt officials and praise the US Attorney's Office, or do you stand by your defense of Harry Larrison?

UNIDENTIFIED

AUDIENCE

MEMBER: Oh, my God.

POWERS: I'm sorry you're out of line. You're out of line. That's it. You're finished. I'm sorry. Next, please.

LIN: Well, I had another comment.

POWERS: No you don't. You're finished.

LIN: Why?

POWERS: Just because the way you're acting here.

UNIDENTIFIED

POLICE

OFFICER: Step back.

LIN: Can I give these to you? (indicating documents)

POWERS: Give them to the clerk.

After defendant's summary judgment motion was argued on January 16, 2008, the court rendered an oral decision. The court's reasons for granting defendant's motion included the following:

First Amendment rights are not absolute. And conduct at public meetings can be restrained. First Amendment rights are subject to reasonable time, manner, and place limitations. See [State v. Charzewski, 356 N.J. Super. 151, 156 (App. Div. 2002); Cox v. Louisiana, 379 U.S. 536, 554, 85 S. Ct. 453, 464, 13 L. Ed. 2d 471, 484, (1965)] . . . .

As I indicated before, the colloquy seemed to suggest that the plaintiff was demanding the Freeholders to individually, the three that she mentioned, take a position regarding the guilt or innocence, if you will of Mr. Larrison.

Mr. Larrison had been charged with some form of corruption, taking a bribe, as I recall something like that. Was arrested, but passed away before anything further happened. He was not indicted. He obviously was not convicted. So, the presumption of innocence remained with him and still remains with him.

. . . .

Freeholders don't deal with criminal cases. That's the bailiwick of a county prosecutor or an attorney general or U.S. attorney. And you can't ask a public official who is acting in his public capacity during the time to take a position regarding the guilt or innocence of an individual. Particularly when that individual is now deceased.

. . . .

. . . I don't see in this case where the actions of the director, of the defendant at this time were in any way malicious, reckless, wanton or willful. I find that they were reasonable under the circumstances, these specific circumstances. And accordingly, I don't see a cause of action for the plaintiff and I will enter judgment for the defendant.

On appeal, plaintiff contends that the trial court erred "in its application of constitutional law" and "in its holding regarding punitive damages"; defendant's actions "are not protected by qualified immunity"; and her speech "was not unprotected." Nevertheless, based on our examination of the record and the applicable law, we are satisfied there are no genuine factual disputes and the trial court correctly applied the controlling legal principles. We therefore affirm the summary judgment order with only the following comments.

We recognize, of course, that "[t]he Government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S. Ct. 2510 2516, 132 L. Ed. 2d 700, 715 (1995). In this case, however, the trial court correctly concluded that defendant's conduct did not constitute viewpoint discrimination.

As the court noted, defendant was entitled to qualified immunity, which provides "ample protection to all but the plainly incompetent or those who knowingly violate the law." Mallery v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271, 278 (1986); see also Van Engelen v. O'Leary, 323 N.J. Super. 141, 151 (App. Div.) (noting that evidence of "carelessness or poor decision making" is insufficient to establish either actual malice or willful conduct), certif. denied, 162 N.J. 486 (1999). In addition, the court determined that the evidence was insufficient to warrant an award of punitive damages. See Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632, 651 (1983) ("[A] jury may be permitted to assess punitive damages in an action under 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others."); accord Oras v. Hous. Auth. of Bayonne, 373 N.J. Super. 302, 318 (App. Div. 2004).

We are satisfied the trial court's findings are adequately supported by the record, and the court correctly applied the law. Accordingly, we affirm substantially for the reasons stated by Judge O'Brien on January 16, 2008.

 
Affirmed.

Lin contends that the official transcript of the Board meeting contains transcription errors. Therefore, she provided the trial court and this court with the official transcript as well as her own "verbatim transcript," which was prepared from an audiotape that plaintiff obtained from the Board. Although the two transcripts contain some minor differences, the differences are inconsequential. We have quoted from plaintiff's transcription because she was the non-moving party. R. 4:46-2(c).

Plaintiff's remaining contentions in Points I and VI, which we do not specifically address, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

(continued)

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A-3121-07T3

March 27, 2009