RICHARD P. ZUCKERMAN v. BOROUGH OF HIGHLAND PARK, ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4461-04T14461-04T1

RICHARD P. ZUCKERMAN,

Plaintiff-Appellant,

v.

BOROUGH OF HIGHLAND PARK,

OFFICER ROBERT MILLS,

DETECTIVE JOSEPH VASSALLO,

SERGEANT FRANCIS KINNEY,

JANE STANLEY,

Defendants-Respondents,

and

ASSISTANT PROSECUTOR WADE BAKER,

and STATE OF NEW JERSEY,

Defendants.

_______________________________________________________________

 

Submitted October 4, 2006 - Decided July 5, 2007

Before Judges Coburn, R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-3743-00.

Richard P. Zuckerman, appellant pro se.

Clark W. Convery argued the cause for respondents Borough of Highland Park and Jane Stanley (Convery, Convery & Shihar, attorneys; Mr. Convery on the brief).

Lori A. Dvorak argued the cause for respondents Officer Robert Mills, Detective Joseph Vassallo and Sergeant Francis Kinney (Dvorak & Associates, attorneys; Maxiel L. Gomez, on the brief).

PER CURIAM

Plaintiff Richard P. Zuckerman appeals from two orders of summary judgment dated April 19, 2005, that dismissed his complaint against the Borough of Highland Park (the Borough) and various municipal employees. One order granted judgment in favor of the Borough and defendant Jane Stanley, the Director of the Borough's Public Library. The other order granted judgment in favor of the three police officers named as defendants, Officer Robert Mills, Detective Joseph Vassallo and Sergeant Francis Kinney. Plaintiff also appeals from an earlier order dated February 6, 2004, that denied his motion for a change of venue from Middlesex County to Morris County. We affirm each of the orders.

This matter arises out of an incident that occurred on November 23, 1998. On that date, plaintiff refused to comply with a request by defendant Stanley to abide by the posted three minute time limit for use of the pay phone located in the lobby of the Library. Plaintiff refused to curtail his use of the phone and challenged Stanley to call the police, which she did. Defendants Mills and Kinney responded and, once defendant was outside with the officers, matters escalated to the point that the officers arrested plaintiff and charged him with disorderly conduct, N.J.S.A. 2C:33-2(a); obstruction of justice, N.J.S.A. 2C:29-1(a); and possession of a weapon, which eventually was downgraded to a disorderly persons offense, N.J.S.A. 2C:33-2b.

Plaintiff was tried in the New Brunswick Municipal Court, having been transferred after plaintiff filed a civil action against Highland Park. Plaintiff was found guilty of disorderly conduct and obstruction of justice, but not guilty of the weapons charge. He appealed and on the trial de novo in the Superior Court, Law Division, Middlesex County, Judge James F. Mulvihill found him guilty of the disorderly conduct charge but not guilty of the obstruction charge. Plaintiff appealed the judgment of the Law Division, and this court affirmed his conviction in an unpublished opinion, Docket No. A-82-02T2 (App. Div. March 13, 2003). The New Jersey Supreme Court subsequently denied plaintiff's petition for certification, State v. Zuckerman, 177 N.J. 492 (2003), and the United States Supreme Court denied certiorari. Zuckerman v. New Jersey, 540 U.S. 953, 124 S. Ct. 396, 157 L. Ed. 2d 287 (2003).

Although it is not clear exactly when plaintiff commenced this civil action, he filed an amended complaint on or about April 6, 2004. In that amended complaint, plaintiff alleges, among other things, that the Highland Park Library policy restricting the pay phone use to three minutes is an unconstitutional abridgement of the freedom of speech; that the Library's failure to have a formal written policy or appeal procedure constitutes a denial of due process of law; that his arrest was retaliatory; and that the police officers involved in the arrest and subsequent trial gave false testimony.

In his letter opinion, dated April 19, 2005, Judge Nicholas J. Stroumtsos, Jr., reviewed in detail the factual background and procedural history of the action. He then reviewed and analyzed each count of plaintiff's amended complaint, concluding as to each, that summary judgment in favor of all defendants was appropriate.

Plaintiff now appeals, raising the following points for argument in his brief:

POINT I: A PUBLIC LIBRARY PATRON HAS A PROTECTED STATE CONSTITUTIONAL RIGHT TO USE THE PUBLIC PAY TELEPHONE LONGER THAN THREE MINUTES, WHEN NOBODY ELSE IS WAITING TO USE THE PUBLIC PAY TELEPHONE; DESPITE THE PUBLIC LIBRARY'S PLACEMENT OF THE TELEPHONE DIRECTLY ACROSS FROM THE CIRCULATION DESK, WITHIN EARSHOT AND POTENTIALL [sic] DISTURBING TOWARDS LIBRARY STAFF, AND THEIR INTENDED RESTRICTED USE OF THE SAME PUBLIC PAY TELEPHONE FOR PATRONS TO CALL FOR ARRANGEMENTS TO BE PICKED UP AND DRIVEN HOME. THIS TYPEWRITTEN NOTE AFIXED [sic] TO THE WALL ABOVE THE PUBLIC PAY TELEPHONE IS NOT A VALID "POLICY" BECAUSE IT IS WRITTEN AS A REQUEST AND IS NOT INCLUDED IN THE FORMAL WRITTEN LIBRARY POLICIES, WHICH DO NOT SET OUT A PROCEDURE TO APPEAL AN ADVERSE DECISION BY A LIBRARY STAFF MEMBER. THIS IS THE ONLY TELEPHONE AVAILABLE FOR LIBRARY PATRONS.

POINT II: A MUNICIPAL COURT CONVICTION I[S] INADMISSIBLE IN ANY CIVIL ACTION AND DOES NOT COLLATERALLY ESTOP RELITIGATION OF THE FACTS, IN A CAUSE OF ACTION FOR VIOLATION OF THE NEW JERSEY CONSTITUTION, ARTICLE 1, PARAGRAPHS 1, 6, 7, 18.

POINT III: A PEDESTRIAN HAS A PROTECTED STATE CONSTITUTIONAL RIGHT TO REFUSE TO PRODUCE IDENTIFICATION TO DEMANDING POLICEMEN, EVEN AFTER LARRY HIIBEL V. SIXTH JUDICIAL DISTRICT OF NEVADA.

POINT IV: THE PRO SE AFFIDAVIT AMENDED COMPLAINT ASSERTS A VIABLE CAUSE OF ACTION FOR COMMON LAW TORT AND STATE CONSTITUTIONAL TORT FALSE ARREST.

POINT V: THE PRO SE AFFIDAVIT AMENDED COMPLAINT ASSERTS A VIABLE CAUSE OF ACTION FOR STATE CONSTITUTIONAL TORT RETALIATORY PROSECUTION.

POINT VI: THE PRO SE AFFIDAVIT AMENDED COMPLAINT ASSERTS A VIABLE CAUSE OF ACTION FOR STATE CONSTITUTIONAL TORT ABUSE OF PROCESS.

POINT VII: A PUBLIC ENTITY IS VICARIOUSLY LIABLE FOR ANY STATE CONSTITUTIONAL TORT COMMITTED BY ONE OF THEIR PUBLIC EMPLOYEES.

POINT VIII: A CHANGE OF VENUE SHOULD BE ORDERED WHENEVER A NAMED DEFENDANT IS A MUNICIPALITY LOCATED IN THE SAME COUNTY WHERE THE LAWSUIT IS FILED.

After carefully considering plaintiff's arguments, in light of the facts and the applicable law, we affirm for substantially the reasons articulated by Judge Stroumtsos in his April 19, 2005 letter opinion. We make the following additional brief comments.

With respect to the order denying a change of venue, (Point VIII), plaintiff argues that a trial in which a municipality is a defendant should never be conducted in the same county where the municipality is situated. In direct contradiction of that argument, R. 4:3-2(a)(2) of the Rules Governing the Courts of the State of New Jersey expressly provides that "actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials [shall be laid] in the county in which the cause of action arose[.]" Plaintiff's asserted cause of action arose in the Borough of Highland Park, in Middlesex County. Therefore, venue was properly laid in Middlesex County.

While the Rules Governing the Courts do contemplate that a change of venue may be ordered, R. 4:3-3(a), plaintiff established no basis for the court to conclude that substantial doubt existed as to whether a fair and impartial trial could be held in Middlesex County. Nor did plaintiff demonstrate any other recognized basis for a change of venue. Under such circumstances, the trial court was well within its discretion in denying plaintiff's motion for change of venue.

We are also satisfied that summary judgment was properly granted. A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). On appeal, "the propriety of the trial court's order is a legal, not a factual question." Pressler, Current N.J. Court Rules, comment 3.2.1. on R. 2:10-2 (2007). When reviewing a grant of summary judgment, this court applies the same standard as that which governs the trial courts. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

The material facts underlying this action are not in dispute. For example, in his amended complaint, plaintiff recounts that when the Library Director told him to get off the phone, he "responded that nobody was waiting to use the phone and if she does not like it to call the police." The amended complaint also confirmed that plaintiff was told to go outside and, thereafter, as a result of the exchange between himself and at least one of the officers, plaintiff was arrested. Plaintiff contends he was arrested because he refused to identify himself. The officers contended he was arrested because he became verbally belligerent and aggressive. Plaintiff contends he is not estopped from re-litigating the facts underlying his conviction, despite the fact he was tried and found guilty of disorderly conduct, and his conviction was affirmed and his petitions for review were denied by the New Jersey Supreme Court and the United States Supreme Court. We acknowledge that N.J.R.E. 803(c)(22) only recognizes an admission of evidence of a final judgment against a party adjudging him guilty of an indictable offense.

However, given plaintiff's own recitation of facts leading to the arrest, it is undisputed that he refused to comply with the Librarian's request that he abide by the written notice of a reasonable rule regulating the use of the telephone, that he defiantly suggested that she call the police, and that he was not arrested until he became involved in a disagreement or confrontation with one of the investigating officers outside the Library. It is not material whether or not the ensuing municipal conviction is given collateral estoppel effect, because the underlying facts that were contained in plaintiff's own pleading establish that he defied the Library rule of which he had notice and that he challenged the Librarian's authority to enforce the rule that placed time limits upon the use of the telephone by its patrons. In that context, the judge's analysis and conclusions regarding the legal and constitutional implications, both state and federal, of the issues warranted the grant of summary judgment.

The judge properly concluded that "[i]n its operation a Library may enact reasonable rules to limit speech activities which are not consistent with the forum's nature and purpose, so long as they are not to oppose the viewpoint." See Kreimer v. Bureau of Police of Morristown, 958 F.2d 1242, 1262 (3d Cir. 1992) (recognizing that "as a limited public forum, the Library is obligated only to permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government's intent in designating the Library as a public forum. Other activities need not be tolerated."). Plaintiff was temporarily, and justifiably, removed from the Library for his refusal to comply with a reasonable rule adopted in consideration of the efficient use of the facility by members of the public who come to read, research, study and contemplate.

Moreover, to the extent plaintiff alleges that he was directed at or about the time of his arrest not to return to the Library, we are convinced, and plaintiff's own concessions made during his deposition confirm, that no one thereafter prevented plaintiff from returning to and using the facility. Also, at oral argument, plaintiff reiterated that he has been permitted to enter the Library since the subject incident. Hence, any cause of action based on the allegation resulted in no harm or prejudice and is moot.

Accepting plaintiff's version of the events as true, that the officers arrested him because of his refusal to identify himself, we nevertheless agree with the trial court that, under the circumstances, that did not violate plaintiff's constitutional rights and does not provide a basis for any relief under state or federal law. The call from the Librarian triggered an investigation by the police as to whether a reasonable basis to suspect that an offense had been committed or was being committed. See, e.g., State v. Crawley, 187 N.J. 440, 451 (2006) (where the Court concluded "that under N.J.S.A. 2C:29-1 a police officer acting on a dispatch may be 'lawfully performing an official function' even if a court later determines that reasonable suspicion was lacking to justify the [investigatory] stop"). In the same vein, the United States Supreme Court observed:

Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. "[I]nterrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure."

[Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185, 124 S. Ct. 2451, 2458, 159 L. Ed. 2d 292, 302.]

The Fifth Amendment states that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]" U.S. Const., amend. V. Although there is no counterpart in the New Jersey Constitution, the privilege against self-incrimination is raised in the common law of the State and formalized in N.J.S.A. 2A:84A-19 and N.J.R.E. 503. To qualify for the Fifth Amendment and the State privilege against self-incrimination, a communication must be testimonial, incriminating and compelled. Hiibel, supra, 542 U.S. at 189, 124 S. Ct. at 2460, 159 L. Ed. 2d at 305. Assuming the disclosure of one's identity is testimonial, it is not incriminating. As the Supreme Court observed: "One's identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances." Hiibel, supra, 542 U.S. at 191, 124 S. Ct. at 2461, 159 L. Ed. 2d at 306.

In this case, plaintiff contends he was arrested because he refused to identify himself, but he was actually charged as a disorderly person, and following a full hearing, he was found guilty. Though plaintiff fully exhausted his right of appeal, that determination of guilt has been affirmed. Whether or not it may be said that plaintiff is collaterally estopped from collaterally attacking a final judgment of a court of competent jurisdiction, we are convinced the trial court properly concluded that plaintiff's claim of retaliation, premised on the officers' alleged misconduct in effecting the arrest and in "framing" him, is not cognizable, either under the Civil Rights Act of 1871, 42 U.S.C. 1983, nor under common law. See, e.g., Heck v. Humphrey, 512 U.S. 477, 483, 114 S. Ct. 2364, 2370, 129 L. Ed. 2d at 383, 392 (1994). In Heck v. Humphrey, the Court said:

We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under 1983.

[Id. at 486-87 (emphasis in original).]

Similarly, our Supreme Court has recognized that a plaintiff in an action for malicious prosecution or malicious use of process "must show that the suit was brought without reasonable or probable cause, that it was actuated by malice, and that it terminated favorably to the plaintiff." Panwag Prop. Co. Inc. v. Landau, 76 N.J. 595, 598 (1978). See also Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003) (explaining that "[i]n order to establish a claim for malicious prosecution, plaintiff must prove (1) that the criminal action was instituted by the defendant against the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of probable cause for the proceeding, and (4) that it was terminated favorably to the plaintiff"). Other then plaintiff's unsubstantiated assertion that he was arrested in retaliation by officers who responded to a call relating to a disturbance at the Public Library, there is no basis to conclude that the officers were not acting in objective good faith, under color of the law. Cf., State v. Crawley, supra, 187 N.J. at 460-61 (defining the phrase "lawfully performing an official function").

Finally, we acknowledge that plaintiff has submitted numerous letters denominated "Judicial Notice Letters." We have considered them and the arguments raised or implied by them; but we find they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

Plaintiff's appendix does not include a copy of the original complaint, and we found no reference in the Case Information Statement nor elsewhere to the date the complaint was filed.

(continued)

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A-4461-04T1

July 5, 2007