2003-2004 LEGAL DOCKET by slappypappy123


									                                                    P.O. Box 750                                                                         ELLEN SAMUEL
                                                    Newark, NJ 07101                                                                     President
                                                    Tel: 973 642 2086                                                                    DEBORAH JACOBS
                                                    Fax: 973 642 6523                                                                    Executive Director
                                                    info@aclu-nj.org                                                                     EDWARD BAROCAS
                                                    www.aclu-nj.org                                                                      Legal Director
                                                                                                                                         JOHN MEDINA
                                                                                                                                         HELEN FORD
                                                                                                                                         Intake Manager/Legal Associate

                                     2003-2004 LEGAL DOCKET
                                                                                                             Meadowlands Stops Clowning Around
 Free Speech & Expression                                                                                    With Animal Rights Group
                                                                                                             PETA v. New Jersey Sports                             NEW
                                                                                                             & Exhibition Authority
Kitchen Sinks States’ Subpoena for                      dents to air grievances about their school. He       US District Court/Direct
Student Documentary Materials                           created it on his own time from home. For this,      Ed Barocas/ACLU-NJ Legal Director
                                                        Dwyer received a five-day suspension, was dis-
Robert Marshall v. Terhune                        NEW qualified from the school baseball team, was not         The ACLU-NJ successfully represented People
U.S. District Court, Camden/Direct                      allowed go on the annual class trip, was not per-    for the Ethical Treatment of Animals (PETA) in a
Bruce Rosen/McCusker, Anselmi, Rosen, Carvelli & Walsh; mitted to take Advanced Placement tests for          free speech case involving the right to leaflet at the
Robert Balin, Matthew Leish/Davis Wright Tremaine       high school, and was forced to take down his         Meadowlands, outside of Continental Airlines
                                                        web site. Nothing                                    Arena. PETA was denied the right to park their
  The ACLU-NJ successfully defended the free Dwyer posted on his                                             truck (from which they were presenting video-
press rights of Rowan University student film website was threaten-                                          tapes regarding the treatment of circus animals)
maker Jason Kitchen when the State of New Jersey ing or terribly offen-                                      outside of the Arena while the Ringling Brothers
subpoenaed his notes and unedited videotaped sive. However, the                                              Circus was performing. PETA secured a
interviews with death row inmate Robert Marshall. school administration                                      Temporary Restraining Order (TRO) that allowed
The interviews were conducted for a documentary apparently objected to                                       them to park their “Reality TV” truck at the
as part of his Television Documentary Production the part of the web-                                        Continental Airlines Arena during Ringling Bros.
course. These were the first filmed interviews of site known as the                                          Circus shows and allowed PETA to leaflet, but only
Marshall since his conviction in 1986. The State of “Guestbook” which                                        in the area around the truck. The case has now
New Jersey wanted the material in case it might contained postings by                                        been resolved and PETA may engage in free speech
assist in the State’s defense of Marshall’s federal other students who                                       activity at the Arena on the dates of the Ringling
petition challenging his death sentence. At issue in logged onto the web-                                    Bros. events. This case was closed in 2003.
this case was (1) whether journalists’ privilege, a site, some of which
public policy that shields the press from compelled the principal con-
                                                                                   Webmaster Ryan Dwyer
                                                                                                             Libraries Open Doors to Greens
disclosure of their newsgathering materials, covers strued as threatening
student filmmakers such as Kitchen; and (2) or offensive. However, Dwyer had a disclaimer                    Green Party v. Hamilton                              NEW
whether in this particular case the State could over- on the Guestbook Page that stated: “NO PRO-            and Trenton Townships
ride the presumption against disclosure. Federal FANITY (that’s curse words and bad words) and               Advocacy/Direct
                                                        no threats to any teacher or person EVER. If you     Bennet Zurofsky, Timothy McCarthy/Reitman Parsonnet
                                                        think it may be a bad word or it may be threat-
                                                        ening DO NOT TYPE IT IN.”When students                 The ACLU-NJ stepped in when the Hamilton
                                                        posted inappropriate material, the posters were      and Trenton Public Libraries would not permit the
                                                        promptly informed that such statements were          Green Party to use library meeting rooms for party
                                                        not permitted. The identities of the posters were    gatherings. Hamilton had a policy that permitted
                                                        not hidden. Nevertheless, Dwyer received a far       meetings of “an educational, cultural or civic
                                                        harsher penalty than any of the students who         nature” but did not permit “religious, purely social,
                                                        actually used profanity or threats. The school has   individual, commercial or political meetings.”
                                                        never told Dwyer and his parents exactly what        Trenton’s policy said that the library “may not be
                                                        school policy or rule Dwyer violated. On             used for sales, fundraising, purely personal func-
                                                        December 18, 2003, the ACLU-NJ filed a suit          tions, or partisan activities.” The ACLU-NJ agreed
                                                        against the Oceanport School District for violat-    to represent the Green Party and persuaded both
                                                        ing Dwyer’s right to free speech and due process.    townships to alter their policies to permit political
                                                                                                             meetings. This case was closed in 2003.

  Student journalists Jason Kitchen, Lindsay McConnell and                                                   Professors’ Call Special Access
Cheryl Kurn, and ACLU-NJ cooperating attorney Robert Balin.           N
                                                               ACLU-NJ Fights for Inmates’ Right             Requirement for the Armed Forces
                                                               to Receive ACLU Prison Project                    “
courts have recognized a qualified privilege pro-
tecting journalists from the compelled disclosure of
                                                                                                             Forum for Academic and                             NEW
both confidential and non-confidential sources and             In the Matter of National           NEW       Institutional Rights (FAIR)
newsgathering information. In order to overcome                Prison Project Journal                        v. Rumsfeld
the privilege, the party seeking disclosure (here, the         Advocacy/Direct                               U.S. Court of Appeals for the Third Circuit/Amicus
State) must make a “strong showing” that 1) the                John Medina/ACLU-NJ Paralegal                 Lawrence Lustberg, Philip Gallagher, Jonathan
information sought is relevant; 2) the information is                                                        Hafetz/Gibbons Del Deo Dolan Griffinger & Vecchione
“necessary” and “crucial” to the claim; and 3) there
is “no other source for the information requested.” The ACLU-NJ successfully represented the                    The ACLU-NJ filed a brief supporting law school
On September 3, 2003, Judge Joseph E. Irenas ruledACLU National Prison Project (NPP) in oppos-               professors and student organizations challenging
that Kitchen’s work was protected by the press    ing the confiscation of an issue of the NPP                the “Solomon Amendment,” which requires that
privilege. He further held that the State could not
                                                  Journal by officials of the Mountainview Youth             the Armed Forces get special access on public law
make a strong showing on any of the three criteriaCorrectional Facility (MYCF). MYCF objected                school campuses for recruitment efforts.
needed to overcome that protection, especially    to an article that described a lawsuit in Texas in            The plaintiffs claim that the Solomon
since the State was afforded the opportunity to   which an inmate alleged abuse by prison guards.            Amendment violates their free speech rights as (1)
question Mr. Marshall himself at a deposition. TheMYCF confiscated the NPP Journal because the               the law forces schools to violate their own non-dis-
judge referred to the state’s subpoena as a “fishing
                                                  article “portrayed officers in a very bad light.”          crimination policies which would include not pro-
expedition.” This case was closed in 2003.        We wrote to the Commissioner of the                        viding access to the Armed Forces, which discrim-
                                                  Department of Corrections and demanded that                inates against gays and lesbians through the “don’t
ACLU-NJ Defends 8th Grader in                     he overturn the MYCY determination and that                ask, don’t tell” policy; and (2) the students are
Online Speech Challenge                           the article be returned to the inmate from                 being denied their ability to adequately receive
                                                  whom it was confiscated. MYCY’s actions vio-               that message the professors were trying to convey
Dwyer v. Amato, et al.                     NEW lated the federal Constitution’s First                        with the passage of the non-discrimination poli-
                                                  Amendment right to free speech, the                        cies. The district court, however, denied the plain-
US District Court/Direct
                                                  Fourteenth Amendment’s guarantee of due                    tiffs a preliminary injunction, finding that they
Grayson Barber, Esq.
                                                  process, and the New Jersey Administrative                 were not likely to succeed in the case. The plain-
  The ACLU-NJ represents Ryan Dwyer who, as Code that governs state prisons. On October 1,                   tiffs appealed. In addition to the question of suc-
an eighth grader, was punished by the 2003, we received a response from                                      ceeding on the legal claims, the government chal-
Oceanport School District administration for Commissioner Devon Brown granting our                           lenged the standing of the professors’ organization
creating a website that provided a forum for stu- demands.                                                   on appeal because FAIR will not reveal its mem-
Page 2                                                                                                                                               2
                                                                                                                                                2003-2004 Legal Docket

bership list, and challenged the standing of stu-       permit application process. The City agreed to
                                                                                                                 Firing Puts Fire Company in Hot
dents to bring the case, because they can show no       waive its requirements for Weaver to hold a public       Water
injury to their right to hear the professors’ mes-      memorial service, but would not rescind the hold         Shoudy v. Roxbury Chemical Engine
sage. The friend-of-the-court brief in which the        harmless requirement for future applications. We         Company, et al.
ACLU-NJ and numerous other civil rights organi-         filed suit in June 2002 and the town agreed to
zations joined explains that the right of organiza-     waive those requirements while the case is pend-         United States District Court/ Direct
tions (such as FAIR) to litigate on behalf of           ing. Although the case is ongoing, the city has been     Frank Corrado/ Rossi, Barry, Corrado & Grassi, P.C.
unnamed members or clients has long been recog-         ordered to pay much of the ACLU-NJ’s attorneys’
nized as an important aspect of the First               fees to date because it has failed to respond to our       The ACLU-NJ filed a lawsuit on behalf of Judy
Amendment right of association. Further, the stu-       requests for information under the discovery phase       Shoudy, a first aid worker who was fired for hav-
dents’ inability to hear the message of others, and     of litigation.                                           ing exercised her constitutionally-protected
to use and enjoy an academic environment, are                                                                    right to free speech, against the Roxbury
injuries sufficient to give the students standing in    Online Internet Takeover Parody                          Chemical Engine Company No. 1 and other
the case. The brief was submitted on January 12,        Tweaks FBI                                               related township defendants. Shoudy, a long-
2004.                                                                                                            time member of the Roxbury Chemical Engine
                                                        Mike Zieper. v. Ashcroft                                 Company No. 1 and the Volunteer Fireman’s
ACLU-NJ Gets “Weedman” Out of the                       U.S. District Court/Direct.
                                                                                                                 Association, and the captain of Engine Company
“Joint”                                                                                                          No. 1’s First Aid Squad, was concerned about the
                                                        Chris Hansen/National ACLU
                                                                                                                 dwindling First Aid Squad membership, believ-
Forchion v. Bartlett I                                     In December 1999, the ACLU-NJ filed a com-            ing that it had a serious affect on the squad’s
                                                        plaint on behalf of Mike Zieper, an independent          ability to make timely responses to rescue calls.
U.S. District Court, Camden/Amicus
                                                        filmmaker, who had published a short film on his         She attempted to discuss the staffing problem
Ron Chen/Rutgers Constitutional Litigation Clinic
                                                        web site depicting a fictional take over of Times        with her superiors, but was rebuffed. In March
  On September 20, 2000, Robert Edward                  Square on New Year’s Eve 1999. An FBI agent and          of 2001, believing that the situation threatened
Forchion (a.k.a. “NJ Weedman”) pled guilty to a         an Assistant U.S. Attorney (AUSA) contacted the          the health, safety and welfare of township resi-
crime involving the sale of marijuana. As part of       filmmaker and the Internet Service Provider and          dents, Shoudy brought her concerns to the
his plea, he was sentenced to ten years in jail with    intimidated them into taking the site down. The          Roxbury Township Council. The council praised
the understanding that he would serve only six          ACLU-NJ filed a suit against the Department of           Shoudy for coming forward and unanimously
months before being released and placed on an           Justice, the FBI agent, and the AUSA challenging         voted to form a special committee to investigate
Intensive Supervised Program (ISP), which began         this action and their policy of censoring speech on      and attempt to resolve the problem. Ten days
on April 3, 2002. As a condition of ISP, Forchion       the Internet. On June 25, 2002, the Court issued an      later, the Roxbury Chemical Engine Company
was ordered not to advocate the use of illegal          order denying the government’s motion to dismiss,        No. 1 removed Shoudy as a member with no
drugs. While steering clear of any illegal activity     ruling that the government had violated Zieper’s         notice. The complaint alleges that Roxbury vio-
pertaining to marijuana, Forchion continued his         free speech rights. The government has now               lated the United States and New Jersey
long-time advocacy for drug policy reform and           appealed that decision to the Second Circuit Court       Constitutions by penalizing Shoudy for the exer-
continued to express to the media and on his web-       of Appeals. On April 2, 2003, the Second Circuit         cise of her free speech rights regarding matters
site his belief that our                                upheld the lower court’s decision and, on                of public concern. The defendants moved for
drug laws are unfair. On                                December 18, 2003, denied the government’s peti-         summary judgment in November 2002. The mat-
June 6, 2002, Forchion’s                                tion to have an en banc rehearing. The government        ter has now been fully briefed and we await a
ISP officers arrested him                               has, if it chooses to do so, until March 18, 2004, to    decision by the Court.
after discovering that he                               petition the United States Supreme Court to review
had disseminated a flier                                the case.                                                       N
                                                                                                                 ACLU-NJ Keeps “Eye On” Internet
protesting the drug laws.                                                                                        Free Speech Rights
He was charged with a                                   Homeowners’ Association Pulls
number of violations of                                 Welcome Mat from Dissident Neighbors                     Donato, et al. v. Moldow, et al.
his ISP program; however,
                                                                                                                 New Jersey Superior Court, Appellate Division/Amicus
he received the harshest                                Committee for a Better Twin Rivers v. Twin               Paul Levy/Public Citizen
sanctions for his distribu-                             Rivers Homeowners’ Association
tion of fliers and for giving                                                                                      The ACLU-NJ filed an amicus brief on behalf
                                                        New Jersey Superior Court, Mercer County: Chancery
interviews to the media. Robert Edward Forchion                                                                  of “John Doe” defendants who posted messages
Forchion was incarcerated (a.k.a. “NJ Weedman”)                                                                  on the “Eye on Emerson” website, which con-
                                                        Frank Askin/Rutgers Constitutional Litigation Clinic
for a few days and then placed on home confine-                                                                  tains political commentary on issues in Emerson,
ment with an ankle bracelet. A few weeks later, his       In December 2000, the ACLU-NJ filed a lawsuit          NJ. The anonymous posters, along with Steven
ISP officers discovered that Forchion produced a        on behalf of a dissident group of homeowners             Moldow who runs the “Eye on Emerson” web-
video advocating drug policy reform. Forchion was       against the Twin Rivers Homeowners’ Association          site, were sued by public officials for libel. The
then re-arrested and held in custody. Again, most       (TRHA) complaining about several actions by the          plaintiffs issued subpoenas to obtain the identi-
of the reasons given for his arrest pertained to his    Association Board of Trustees. The complaints            ties of the anonymous posters. In two prior cases,
videos, website, and interviews with media. The         include violations of freedom of expression and          Dendrite and Immunomedics, the ACLU-NJ was
ACLU-NJ argued on behalf of Forchion that sub-          association and denial of access to information by       successful in ensuring that persons suing for libel
jecting him to adverse action for his free speech       officials of the TRHA. Specifically, our clients com-    could not automatically obtain the names of
activities concerning marijuana legalization vio-       plain that they were denied access to the Twin           anonymous web posters. In those cases the
lates the First Amendment. The judge agreed with        Rivers Community Room for an open public meet-           appellate court held that an attempt must be
our arguments and, on January 24, 2003, ordered         ing regarding Board elections, although other resi-      made to contact anonymous posters prior to any
Forchion’s release from jail and return to ISP. Less    dents are allowed to use the room; they are prohib-      disclosure of their identities, and that the court
than a week later, ISP dropped all violations           ited from posting Board election signs on commu-         had to make preliminary findings based on the
against Forchion. Despite that, in September 2003,      nity property, while other residents post signs          facts of each case before disclosure of the posters’
the State moved for summary judgment, asking the        about other issues; despite numerous requests, they      identities. In the “Eye on Emerson” case, a notice
Court to essentially reverse its prior legal opinion.   have been denied access to financial and other           was placed on the website, hoping to reach the
The ACLU-NJ filed a brief in opposition and we          records maintained by the TRHA; they have been           anonymous posters. However, many of the
await a decision from the court.                        prohibited from taping open Board meetings and           anonymous posters being sued have not come
                                                        denied a copy of the official tape of these meetings;    forward to challenge the disclosure of their
Hold Harmless Provision Harmful to                      they have been denied access to lists of eligible vot-   names. The ACLU-NJ took the position that the
Free Speech Rights                                      ers and thereby prevented from effectively cam-          court must still make the necessary preliminary
                                                        paigning for spots on the Board; and the                 findings before allowing disclosure, despite the
Weaver and Hamm v. City of East Orange                  Association's monthly newsletter delivered to all        failure of the anonymous posters to appear
                                                        residents has been used to promote the current           before the court to object. Our brief also sets
New Jersey Superior Court, Essex County/Direct
                                                        Board and president and has refused access to the        forth that the website owner (Moldow) cannot
Lynn Miller, Arthur Miller/Miller & Miller
                                                        dissident group. The ACLU-NJ has raised claims           be held liable for the postings placed on his site.
  Lawrence Hamm, President of the People’s              alleging violations of the common law, state             On January 2, 2002, the court held that the
Organization for Progress (POP), and Mary               statutes and the New Jersey Constitution. The case       defendants did not specifically identify which
Weaver, a POP member whose son was killed by            seeks to establish that free speech rights under the     postings were libelous and did not provide suffi-
the East Orange police, have attempted to hold a        New Jersey Constitution apply to large private con-      cient notice to the posters. The court also dis-
number of rallies, marches, and memorials in East       dominiums such as Twin Rivers. On February 17,           missed some of the claims against Moldow relat-
Orange. However, the city has required permit           2004, the trial court judge ruled that THRA violat-      ed to his liability for postings. The plaintiffs have
applicants to obtain a one million dollar insurance     ed some of plaintiffs’ free speech and voting rights     appealed. The brief in support of their appeal
policy and to sign hold harmless agreements as a        under a state statute, namely the Planned Real           was submitted in December 2003, and the
condition of applying for a permit. When Weaver         Estate Development and Full Disclosure Act.              ACLU-NJ is preparing to file an amicus brief in
and Hamm submitted applications without obtain-         However, the court further held that the free            response.
ing insurance, their permit applications were           speech protections of the New Jersey Constitution
denied. The ACLU-NJ sent letters informing the          do not extend to claims against private homeown-                    Stand up for freedom –
City of East Orange that we would sue on Weaver’s       ers associations, even if they act essentially as a
and Hamm’s behalf if the insurance and hold             town in and of themselves. We intend to appeal the             because freedom can’t protect itself.
harmless requirements were not removed from the         trial court’s ruling.
2003-2004 Legal Docket                                                                                                                                                    Page 3

ACLU-NJ Fights for Peace and Justice                       highways, alleys or any other public place in the
in Pleasantville                                           City of Pleasantville.” The permit must be approved
                                                           by both the Chief of Police and the Mayor, and
Coalition for Peace and Justice v. City of                 there are no limits placed on their discretion. The
Pleasantville                                              penalties include a fine of up to $1000 and up to 90
United States District Court/Direct
                                                           days in jail. The ordinance also required the appli-
Frank Corrado/ Rossi, Barry, Corrado, Grassi & Radell
                                                           cant to purchase a policy for liability insurance,
                                                           with the amount of insurance to be determined by
  The ACLU-NJ represented members of the                   the town’s “Joint Insurance Fund’s Special Events
Coalition for Peace and Justice, an anti-war group         Schedule.” After negotiations with the ACLU-NJ,
that challenged the City of Pleasantville’s free           the city agreed not to enforce the ordinance against
speech permit requirements. The Coalition attempt-         the Coalition members and to revise their ordi-
ed to hold an event in Pleasantville on October 9,         nance. Unfortunately, Pleasantville’s revised statute
2001, in protest of bombings in Afghanistan.               did not adequately protect free speech rights and, in
However, police threatened the Coalition members           May 2003, the ACLU-NJ filed suit. After the ACLU-
with arrest if they did not leave. The following day,      NJ filed a motion for an injunction, Pleasantville
a Coalition member went to apply for a permit and          agreed to amend its ordinance again “so that any
was told that he needed an appointment with the            event involving activity protected by the First
Chief of Police to do so. Eventually, the police told      Amendment will not require a permit from the City,
the group that they must apply by mail and that it         so long as that event does not require closure of a
might take two weeks for a response. The permit            public street, sidewalk, alley, public right-of-way, or
ordinance in question requires any “procession or          other property owned or controlled by the City.” As
parade of any kind” to obtain a permit before it may       such, the Coalition was no longer subject to the
“pass, congregate or be in or over any of the streets,     ordinance. This case was closed in 2003.

 Racial Discrimination
Probationers and Parolees Fight for                       sor to leave the plane. After their removal, the flight            N
                                                                                                                       ACLU-NJ Supports Challenge
Voting Rights                                             supervisor explained that the pilot said that a pas-         Regarding De Facto Segregation
                                                          senger was uncomfortable with their presence.
                                                                                                                       Caused by Charter School
NAACP v. Harvey                                       NEW Dasrath, Cureg, and Cureg’s professor had to wait
New Jersey Superior Court, Union County/Direct
                                                          hours for a later flight, which flew to Orlando as           In the Matter of Red Bank Charter School
Frank Askin/Rutgers Constitutional Litigation Clinic;
                                                          there were no more flights to Tampa. The men were
                                                                                                                       New Jersey Superior Court, Appellate Division/Amicus
Laughlin MacDonald/ACLU Voter Rights Project
                                                          placed on the later flight without any additional
                                                                                                                       Philip Gallagher/Gibbons, Del Deo, Dolan, Griffinger &
                                                          security checks. Our complaint against the airline
   The ACLU-NJ and Constitutional Litigation Clinic raises claims under both federal and state laws
at Rutgers Law School filed a lawsuit on January 6, against discrimination. Continental filed a motion to
2004, challenging the denial of voting rights to per- dismiss the complaint. Oral argument on that                        The ACLU-NJ filed an amicus brief in this case
sons on probation or parole in New Jersey. The law- motion was held on October 15, 2002 and the judge                  involving a challenge to the State Department of
suit, the first in the nation                             ruled in our favor. The judge held that we had pre-          Education’s approval of the expansion of the Red
to raise a state constitution-                            sented sufficient evidence to support our allegation         Bank Charter School. New Jersey statutes permit
al challenge to such a law,           PRINTER’S           that the pilot’s action was based on discrimination          public funding to be used for charter schools.
maintains that because                     FPO            and that pilots are not exempt from discrimination           However, the New Jersey State Supreme Court
minorities are vastly over-                               laws. As such, the case will move forward.                   held that there is a “constitutional command” to
represented in the criminal                                                                                            prevent segregation (including de facto segrega-
justice system, our laws                                                                                               tion) in our public schools which must be read
denying probationers and
                                        INSERT                        N
                                                          ACLU-NJ Sues Swimming Pool Owner                             into the statute. As such, in determining whether
parolees the right to vote                                with Whites-Only Policy
                                                                                O                                      or not to grant charter school status or approve
result in a denial of the New         QUILES PIX                                                                       expansion, the State Commissioner is required to
Jersey Constitution’s guar-                               Shepard, et al. v. Le Terrace Swim Club, et al.              assess (1) how the charter school will affect the
antee of Equal Protection                                                                                              racial balance of the district from where it draws
                                                          New Jersey Superior Court, Law
under the law. Plaintiffs in                                                                                           its students; and (2) the economic impact on the
the suit are the New Jersey                                                                                            district.
                                       Zenon Quiles       Anne McHugh/ Pellettieri, Rabstein & Altman
State Conference of the                                                                                                   While there is apparently nothing overt in the
NAACP, the Latino Leadership Alliance of New                                                                           charter school to cause segregation, there is
Jersey, Councilwoman Patricia Perkins-Aguste and            On August 22, 2002, the ACLU-NJ filed suit in state        nonetheless a great disparity in racial composition
Councilman Carlos J. Alma, both of Elizabeth, and court against the LeTerrace Swim Club in Nutley, NJ,                 between the charter school and the Red Bank
ten individuals on parole or probation.                   which engaged in discrimination against non-whites           Public School. Nevertheless, the Commissioner
                                                          by excluding them from joining and from using the            agreed to expand the Charter School from just
                                                          facilities as guests. The lawsuit is based upon the New      middle school grades to kindergarten through 8th
ACLU-NJ Sues Continental Airlines for Jersey Law Against Discrimination (LAD). The pool                                grade. The Red Bank Board of Education has now
Discriminatory Deplaning                                  club, a privately owned business, is subject to the          appealed to the Appellate Division. The charter
                                                          LAD as it is “a place of public accommodation” that is       school argued before the Commissioner that the
Dasrath v. Continental Airline                            not “distinctly private” (i.e., it is not an “association-   decrease in white enrollment in the public schools
                                                          al” club and it advertises to the general public). In one    should be blamed on white flight, not on the role
Cureg, et al. v. Continental Airlines
                                                          instance, the Russos, a white family who were mem-           of the charter school. They also argued that the
United States District Court/Direct
                                                          bers, attempted to take Marci Shepard, a 17 year-old         reason why a higher percentage of whites attend-
Reggie Shuford, Vince Warren, Amrit Singh/National ACLU
                                                          African American girl they had taken into their home         ed the charter school is that it draws students from
                                                          after her father died, to the club as their guest. A club    the local private schools, not the public school sys-
   The ACLU-NJ and the National ACLU have sued employee told them that no more guests were                             tem. They further argue that, in assessing whether
Continental Airlines on behalf of Michael Dasrath allowed in that day. Thereafter, however, the                        there is segregation, the Commissioner should
and Edward Cureg, who were discriminated against employee allowed in other members and their white                     look at the overall make-up of the town as
when removed from a Newark-to-Tampa flight on guests. When Ms. Russo complained, she and her                           opposed to the make-up of the public school prior
December 31, 2001. Dasrath and Cureg, who did not children were told to leave the club. In another inci-               to the charter being granted. We argue that the
know one another, were both flying to Tampa to be dent, the Giordano family attempted to host their                    town cannot take funding away from the public
with family for New Year’s Eve. While the flight daughter’s birthday party at the pool. The pool club                  schools in order to create a safe haven within the
awaited take-off, Cureg, who is from the owner went over the list of guests with Ms. Giordano,                         system for white students for which they (the
Philippines, spoke with his mathematics professor, and asked if any brown or black skinned children                    white families) no longer have to pay themselves.
an Indian man who happened to be on the same were on the list. When told that there were such chil-                    We also agree with the Red Bank Board of Ed that
flight. Dasrath, who is an American citizen original- dren on the list, the owner told Ms. Giordano that               the make-up of the public school provides the
ly from South America, sat in his assigned seat one they would not be welcome at the club. The                         appropriate figures for comparison with the char-
row behind them and did not converse with them. Giordanos moved the party to another location.                         ter school. Oral argument is scheduled for
A female passenger walked up the aisle to first class Discovery is expected to be completed in early 2004.             February 3, 2004.
on a few occasions and stared at the three men. She
then summoned the pilot and told him that “three
brown-skinned men are behaving suspiciously.”
The pilot failed to ask the woman to elaborate on
those behaviors. Instead, he left the cabin area.                                Freedom is Why We’re Here
Thereafter, a flight supervisor came aboard the
plane and asked Dasrath, Cureg and Cureg’s profes-
Page 4                                                                                                                                                    2
                                                                                                                                                     2003-2004 Legal Docket

 Government Secrecy                                                                                                      ACLU-NJ Staff
ACLU-NJ Sues for Public Access to                              ACLU-NJ filed a lawsuit in federal district court
Deportation Hearings                                           challenging the Creppy Memo on First
                                                               Amendment grounds, representing the New
North Jersey Media Group, et al. v. Ashcroft, et al.           Jersey Law Journal and North Jersey Media Group,
United States Court of Appeals for the Third Circuit/ Direct   owner of the Herald News, which sought to send
Lawrence S. Lustberg, Shavar Jeffries/Gibbons, Del Deo,        reporters to cover the hearings. We argued that
Dolan, Griffinger & Vecchione; Steve Shapiro/ACLU; Lucas       the government cannot impede upon the long-
Guttentag, Lee Gelernt/ACLU Immigrant Rights Project;          standing history of openness in court proceeding,
Nancy Chang/ Center for Constitutional Rights; David Cole/     including immigration proceedings, and that the
Georgetown Law School                                          blanket non-disclosure requirement (as opposed to
                                                               the case-by-case determinations) was not a nar-
  On September 21, 2001, Chief U.S. Immigration                rowly tailored means of furthering the govern-
Judge Michael Creppy issued a memo stating that                ment’s interests. District Court Judge John Bissell
the deportation hearings of all post-911 “special              found in our favor and the government appealed.
interest” detainees must be closed to the press and            On October 8, 2002, in a 2-1 decision, the Court of       L-R, John Medina (Paralegal), Elizabeth Mera
the public. The government identified “Special                 Appeals for the Third Circuit reversed the district     (Administrative Assistant), Michelle Mulia-Howell
interest” cases as those in which the detainee in              court’s opinion, holding that newspapers did not    (Development Director), Edward Barocas (Legal Director),
question has not yet been cleared of connections               have a First Amendment right of access to depor- Eric McKinley (Office and Technology Manager), Helen Ford
to terrorism by the FBI. Prior to the issuance of              tation proceedings that were determined by the         (Legal Associate/Intake Manager), Parastou Hassouri
the Creppy Memo, immigration judges were per-                  Attorney General to present significant national     (Immigrant Rights Specialist), Deborah Jacobs (Executive
mitted to determine on a case-by-case basis                    security concerns. The ACLU-NJ filed a petition to   Director), Deborah Leah Stapleton (Legislative Director).
whether security or other reasons would require a              have the United States Supreme Court hear the
case to be closed to the public, with a presumption            case. That petition was denied on May 27, 2003.
in favor of open hearings. On March 25, 2002, the              This case was closed in 2003.

 Gay & Lesbian Rights
You Gotta Fight For Your Right                                 property given that New Jersey recognizes “psy-           but the Supreme Court denied the Petition for
To Marry                                                       chological parents.” (This holding comes from a           Certification and dismissed the appeal. We then
                                                               previous ACLU-NJ case, titled V.C., involving             proceeded with our case against the University.
Lewis, et al. v. Harris, et al.                       NEW      visitation rights of a lesbian non-biological par-        In January 2004, the New Jersey Legislature
New Jersey Superior Court, Mercer                              ent.) We also argue that New Jersey laws allow            passed a domestic partnership bill that will
County/Amicus                                                  survivor benefits if there was a contract to adopt        require the State to offer health care benefits for
Ed Barocas/ACLU-NJ                                             but it had simply not been completed, as in this          the partners of employees in same-sex partner-
                                                               case. We filed our brief in October 2003.                 ships. We await the promulgation of policies to
  On May 28, 2003, the ACLU-NJ submitted an                                                                              effectuate the domestic partnership bill, so as to
amicus curiae brief supporting seven same-sex                                                                            ensure it will cover same-sex partners of plain-
couples who seek the right to marry. We sub-                          N
                                                               ACLU-NJ Asks Rutgers: R.U. Ready to                       tiffs who have retired but remain under the
mitted the brief on behalf of numerous civil                   Give Equal Health Benefits to Same-                       State's pension and benefits plan.
rights organizations including the ACLU-NJ, the
American-Arab Anti-Discrimination Committee,
                                                               Sex Partners?
the Asian-American Legal Defense and                           AAUP v. Rutgers University                                State Supreme Court Refuses to
Education Fund, the National Organization for                                                                            Give Psychological Parent Status
                                                               New Jersey Superior Court, Middlesex
Women Legal Defense and Education Fund,
and the National Organization for Women of                     County/Direct.                                            “Retro” Look
New Jersey. Our brief counters the State’s                     Denise Reinhardt/Reinhardt & Schachter; Rosemary          A.B. v. S.E.W.
argument that the court should forego its obli-                DiSavino; Julie Goldsheid/NOW Legal Defense & Education
                                                                                                                         New Jersey Supreme Court/Amicus
gation to resolve the constitutional claims pre-               Fund, Elizabeth Zuckerman, Zuckerman & Fisher
                                                                                                                         J.C. Salyer/ACLU-NJ
sented and, instead, permit the legislature to
decide what rights plaintiffs should be afford-                  The ACLU-NJ sued the State of New Jersey
ed. On November 6, 2003, Judge Feinberg                        and Rutgers University over the denial of health            This cases raised the issue as to whether the
granted the State's motion for summary judg-                   benefits to Rutgers University’s lesbian and gay          New Jersey Supreme Court's previous decision
ment, finding no constitutional right to gay                   faculty members for their life partners. Our              in a case called V.C. – in which the Court deter-
marriage under the New Jersey Constitution.                    claims against the State proceeded first. The             mined that a same-sex partner can be deemed a
That decision was appealed to the Appellate                    State determined that the plaintiffs – four               “psychological parent” and therefore may be
Division in December 2003.                                     Rutgers faculty members and a dean – were not             due visitation rights – can be applied to cases in
                                                               entitled to health benefits for their partners            which visitation rights were previously denied.
                                                               under the State Health Benefits Plan (SHBP),              A.B.'s initial request for visitation, heard before
ACLU-NJ Argues For Survivor Benefits                           which provides health insurance to all employ-            V.C. was denied and A.B. did not appeal at the
for Child of Same-Sex Couple                                   ees and their “dependents.” The SHBP defines              time. When A.B. applied again for visitation
                                                      NEW      “dependents” as “spouses” and employees’ chil-            post-V.C., her request was dismissed by the trial
In the Matter of N.C.                                          dren. The State argued that the SHBP only pro-            judge, based on the fact that it had previously
                                                               vided benefits to the legally married spouses of          been litigated. After A.B. appealed, the
Social Security Administration/Amicus
                                                               employees. We argued that the term “depend-               Appellate Division dismissed her case stating
Romy Mancini/ACLU Lesbian & Gay Rights Project (LGRP)
                                                               ents” in the SHBP should be interpreted broad-            that, if V.C. is to apply retroactively, then a
                                                               ly to encompass gay and lesbian life partners of          directive must come from the New Jersey
  The ACLU-NJ, in conjunction with the ACLU                    Rutgers’ employees. We further argued that to             Supreme Court, not the Appellate Division. The
LGRP, filed an amicus brief in support of a five-              deny plaintiffs health insurance benefits – a             ACLU-NJ filed an amicus brief on June 7, 2002,
year-old boy, N.C., who is seeking survivor ben-               central component of compensation – equal to              in support of A.B.’s Petition for Certification to
efits following his non-biological mother's                    that provided to married heterosexual employ-             the New Jersey Supreme Court. On July 16,
death. N.C.’s biological mother (E.K.) and her                 ees, constitutes discrimination on the basis of           2002, the Court granted certification and also
lesbian partner (C.C.) were already in a long-                 both sexual orientation and marital status. The           granted our request to serve as amicus. On April
term relationship when they decided to have a                  Appellate Division dismissed our complaint                1, 2003, the New Jersey Supreme Court held
child. E.K. was the biological parent and their                against the State. The court found that the State         that the decision in V.C. was not an exceptional
son, N.C., took the non-biological mother's last               Health Benefits Plan only provided benefits to            circumstance that would justify reopening a
name. Although C.C. had planned on legally                     legally married “spouses” of employees; that the          final order that could have previously been
adopting N.C., she had not done so at the time                 Law Against Discrimination did not apply                  appealed by the party. The Court noted that, to
of her death (when N.C. was three years old). A                because there is an exception for bona fide               prevent endless re-litigation of settled cases,
child qualifies for Social Security survivor bene-             insurance plans; and that there was no violation          new developments in case law generally do not
fits if s/he is entitled to inherit property under             of the equal protection clause because other              qualify as an extraordinary circumstance so as to
the state inheritance laws. Therefore, while the               people, in addition to gay couples, may not               justify relief under the catchall provision of rule
case is in a federal forum and must be appealed                legally marry and therefore the denial of bene-           providing for relief from judgment. This case
in federal court, the court should apply New                   fits is not based on sexual orientation. The              was closed in 2003.
Jersey state law. The ACLU brief argues that                   ACLU-NJ filed an appeal and a Petition for
New Jersey law entitles N.C. to inherit C.C.’s                 Certification to the New Jersey Supreme Court,
2003-2004 Legal Docket                                                                                                                                                      Page 5

 Search & Seizure                                                                                                       extra-curricular activities and those who park on
                                                                                                                        campus. The ACLU-NJ had challenged this policy,
                                                                                                                        on behalf of parents and students, as a violation of
                                                                                                                        privacy and the protection against unreasonable
Former Offenders Fight State DNA                                  N
                                                           ACLU-NJ Claims Police Search Based                           searches and seizures in the New Jersey
Collection Program                                                   y
                                                           on Static-y Evidence                                         Constitution. The United States Supreme Court
                                                                                                                        had previously upheld random drug testing policies
A.A., et al. v. Monmouth County                   NEW      State v. Frankel                                      NEW    – first for just student athletes (in a case called
Probation                                                  New Jersey Supreme Court/Amicus                              Vernonia) then for all students in extra-curricular
New Jersey Superior Court, Mercer County/Direct            Philip Gallagher/Gibbons Del Deo Dolan Griffinger &          activities (in a case called Earls). In Joye, the New
Lawrence Lustberg, Gita Guttierrez/Gibbons Del Deo Dolan   Vecchione                                                    Jersey Supreme Court rejected the ACLU-NJ’s
Griffinger & Vecchione                                                                                                  argument that the broader search and seizure pro-
                                                              In this case, a 9-1-1 operator had received a num-        tections in the State Constitution warranted a dif-
                                                           ber of 9-1-1 calls from different locations on the           ferent result than under the Federal Constitution.
  On January 21, 2004, the ACLU-NJ filed a                 morning in question that had only static on the              Rather, the majority in Joye relied heavily on
lawsuit challenging New Jersey’s DNA law,                  line. As with the prior static-line calls, police were       United States Supreme Court decisions. Like its
which empowers the state to collect DNA from               sent to the home from where the call emanated. At            federal counterpart, the State Supreme Court held
all people convicted of a crime, including juve-           the other homes, individuals consented to police             that the school met the “special needs” exception to
niles. The DNA sample is then catalogued and               entry. Frankel did not consent to the police enter-          the search and seizure warrant requirement
maintained in a database by law enforcement                ing his home. Police were not satisfied by defen-            because of the need for schools to provide safe
agencies. The lead plaintiff in the case is a juve-        dant’s explanation that the 9-1-1 call was likely a          environments, the diminished expectation of pri-
nile who was 14 years old when he was adjudi-              computer glitch. Police viewed the defendant as              vacy of students (especially when in extra-curricu-
cated delinquent for having acted out against his          nervous, especially given his insistence that they           lar activities), and the showing by this school that
father, and then against police when they were             not enter his home when they requested to do so.             a significant portion of the student body had used
called in. After being placed on probation for             The police thereupon undertook a warrantless                 drugs or alcohol (although admittedly it was no
the fourth degree offense, A.A. received psychi-           search of defendant’s home by walking into rooms             larger a percentage than the national average). The
atric counseling. He has been free from violent            and looking into closets, and the officers observed          majority then noted the importance of Justice
outbursts since that time and is doing well in             a tray of marijuana and several live plants. The             Breyer’s statements, from his concurring opinion
school. The other plaintiff, Jamaal W. Allah, is           ACLU-NJ, in conjunction with the Association of              in the Earls decision, regarding conscientious
presently incarcerated at Midstate Correctional            Criminal Defense Lawyers of New Jersey, submit-              objectors’ ability to opt out of the random testing
Facility for drug-related offenses, and is await-          ted an amicus curiae brief on October 8, 2003, sup-          program by not participating in extra-curricular
ing parole. Along with the complaint, the                  porting the criminal defendant in this case. The             activities. The New Jersey Supreme Court there-
ACLU-NJ filed with the court a motion for a                issues are (1) whether the emergency aid exception           fore stated that a policy of random testing for all
preliminary injunction, seeking to prohibit the            to the warrant requirement can be invoked based              students, rather than limiting it to extra-curricular,
State from extracting the plaintiffs’ DNA sam-             on a 9-1-1 call that only had static on the line and         “would eliminate the ability of a conscientious
ples while the case is pending. That motion will           (2) whether an officer can take into account an              objector to opt out of the eligible pool….[T]hat
be heard by the Court on February 6, 2004. In a            individual’s insistence that police not enter his            option contributes to the program’s reasonableness;
related case, the ACLU-NJ supported Ed                     home, in conjunction with general nervousness, to            its removal, therefore, would jeopardize the pro-
Forchion (AKA “NJ Weedman”) in his efforts to              invoke the emergency exception. Oral argument                gram’s constitutionality.” The court also stated that
obtain an injunction against enforcement of the            was held on December 3, 2003. We are awaiting a              its decision is “not to be viewed as a green light for
DNA statute. On November 3, 2003, we filed an              decision by the Court.                                       schools wishing to replicate Hunterdon Central’s
amicus brief on Forchion’s behalf, arguing that                                                                         program.” Each drug and alcohol testing program
the statute violates federal constitutional pro-           School Tells Students:                                       would be analyzed separately, and each school
tections against unreasonable searches and                 “Urine ... Or You’re Out”                                    would have to “base their intended programs on a
seizures. Forchion was released from probation                                                                          meticulously established record.” The three dissent-
despite refusing to provide a DNA sample. The              Joye, et al. v. Hunterdon Central Regional High              ing justices in Joye held that government searches of
federal claim therefore became moot. However,              School                                                       individuals without any suspicion of wrongdoing by
the State has now brought charges in state court                                                                        those individuals is unconstitutional and that stu-
                                                           New Jersey Supreme Court/Direct
to require Forshion to comply with DNA test-                                                                            dents in extracurricular activities do not shed such
                                                           Ravinder Bhalla/Krovatin & Associates
ing. The ACLU-NJ is not involved in Forchion’s                                                                          constitutional protections. The justices warned:
state case.                                                 On September 9, 2003, the New Jersey Supreme                “The desire to wage war on drugs should not be per-
                                                           Court, in a 4-3 decision, upheld Hunterdon Central           mitted to coarsen our sensitivities to constitutional
                                                           High School’s random drug policy for students in             protections.” This case was closed in 2003.

 Religious Freedom
State Appropriation to Catholic School                     ACLU-NJ agreed to dismiss the claims regarding the           claim, stating that Congress did not have the
“Holy” Inappropriate                                       funds to St. Peter's after it was clarified that the funds   authority to pass such a law. On November 26,
                                                  NEW      for St. Peter’s would be used solely for environmen-         2003, the ACLU-NJ submitted its brief defending
ACLU and Houston v. Librera, et al.                        tal clean-up, which would protect the surrounding            the constitutionality of RLUIPA. In December
New Jersey Superior Court, Mercer County/Direct            community from chemicals that could seep into the            2003, the United States Attorney General also filed
Marc Stern/American Jewish Congress                        surrounding land and that had been present on the            a brief defending the Act. We await a decision
                                                           site before St. Peter's bought the land. The case con-       from the District Court judge.
   On August 28, 2003, the ACLU-NJ filed a lawsuit         tinued, however, based upon the challenge to the
challenging the distribution of $500,000 of State          grant to Seton Hall Prep. On February 26, 2004, the
funds to two private Catholic high schools. The            Office of the Attorney General certified that the                   N
                                                                                                                        ACLU-NJ Opposes Discrimination
funds were designated for the two schools as part of       State will not release the $250,000 in State funds to        Against Religious Jurors
the State’s budget, with $250,000 to go to Seton Hall      Seton Hall Prep. Given this success, on March 1,
Prep for “expansion” and $250,000 to go to St. Peter's     2004, the ACLU-NJ filed a notice to dismiss the com-         State v. Fuller                                     NEW
Prep for “field remediation.” The ACLU-NJ claimed          plaint.                                                      New Jersey Supreme Court/Amicus
in its complaint that the provision of taxpayers’ funds                                                                 Ronald Chen/ Rutgers Constitutional Litigation Clinic
to the two religious schools violates the                  Prison Decides “Witch” Religions
Establishment Clause of the New Jersey Constitution        Should Not Be Recognized                                       The ACLU-NJ appeared as amicus curaie in
and the “No Preference” Clause of the New Jersey                                                                        opposition to a prosecutor’s act of striking poten-
Constitution. While the United States Supreme              Pantusco v. Moore                                            tial jurors from a jury pool based on the fact that
Court has upheld programs in which funds or bene-                                                                NEW    the prosecutor perceived those individuals to be
                                                           U.S. District Court/Direct
fits are made generally available to all schools or stu-                                                                “demonstrative about their religion.” One poten-
                                                           Steve Latimer/Loughlin & Latimer
dents and therefore end up in part going to parochial                                                                   tial juror was a missionary; the other juror was
schools, the New Jersey legislature's grant of direct        Patrick Pantusco, an inmate in East Jersey State           dressed in all black and wore a skull cap. The
funds solely to the two Catholic schools (to the           Prison in Rahway who practices Wicca, requested              ACLU-NJ argued that such an action violates the
exclusion of other non-secular and secular schools)        ACLU-NJ assistance in his efforts to obtain Wiccan           religion clauses of both the United States and New
lacks the essential element of “neutrality.” In addi-      books and religious items. He has consistently been          Jersey Constitutions. The ACLU-NJ argued that
tion to representing itself, the ACLU represents           denied the materials and told that, “This [Wicca] is         not only is it inappropriate for jurors to be struck
Madeline Houston, who has two children currently           not a recognized religion per Chaplaincy Dep’t.”             because they are demonstrable about their religion
in the Montclair public school system. Her son is at       There are federal cases however acknowledging                but, in addition, such a basis will often amount to
a Montclair Middle School which rents out space in         Wicca as a religion. Among the claims against the            a removal based upon a particular religious belief
a church because it does not have sufficient facilities.   State defendants is that they violated the federal           or affiliation and will lead to discrimination
For use of a gym or library, the students at the           Religious Land Use and Institutionalized Persons             against identifiable religious minorities. Argument
Middle School must walk to the YMCA or to the              Act (RLUIPA), which protects religious rights of             was held in the New Jersey Supreme Court on
town’s public library. On December 17, 2003, the           inmates. The State moved to dismiss the RLUIPA               December 2, 2003 and we now await a decision.
Page 6                                                                                                                                                 2
                                                                                                                                                  2003-2004 Legal Docket

Inmates’ Request for Halal Foods                          Court Holds Town Must Give Equal
“Meats” Resistance                                        “Utility” to Religious Group Using                        the lower court should have been clear that the
                                                                                                                    town bore the burden of establishing that they
Muhammad, et al. v. Terhune, et al.
                                                          Poles                                                     would have reached the same result for reasons
                                                          Tenafly Eruv Association v. The Borough of                other than discrimination. On October 24, 2002,
U.S. District Court/Direct
                                                          Tenafly                                                   the Third Circuit Court of Appeals ruled that,
Ed Barocas/ACLU-NJ
                                                                                                                    because the town failed to enforce the regulation
                                                          U.S. Court of Appeals for the Third Circuit/Amicus        prohibiting use of the poles by other Borough resi-
   After East Jersey State Prison stopped allowing        Ronald Chen/Rutgers Constitutional Litigation Clinic      dents, it could not deny the Eruv Association the
inmates to receive outside food packages from                                                                       right to use the poles. The town petitioned for the
friends or loved ones, a number of Muslim inmates            This matter arose when a group of Orthodox Jews        United States Supreme Court to review the case
requested that the prison provide them with Halal         in the Borough of Tenafly requested permission to         and, on June 23, 2003, that petition was denied.
meals. The prison stated that they would give them        erect an eruv on utility poles in a large portion of      This case was closed in 2003.
vegetarian food made within the prison that meets         the town. An eruv is a religious structure that sym-
Halal standards. However, the inmates believe that        bolically extends the confines of what is considered
their religion requires them not only to eat Halal
food but to affirmatively eat Halal meats and, as
                                                          one’s home for purposes of Jewish law. The
                                                          Borough council denied the request. The ACLU-NJ
such, the vegetarian meals alone do not meet the          initially did not take the side of either the plaintiff
religious requirement. Because the prison does not
carry Halal food in the commissary and no longer
                                                          or defendant. Rather, we informed the court of the
                                                          issues and legal analyses involved. First, we told the     Freedom
permits food packages to be sent to the prison, the       court that it must determine whether the utility
provision of Halal meats would require the State to       poles constitute a public forum for expression. If so,    “Work First” Puts Children Last
go to outside sources to obtain such food – and the       the borough would have no right to object to any
prison would not agree to do so. East Jersey does go      form of speech that they are used for, religious or       Sojourner A. v. New Jersey Department of
to an outside food vendor for Kosher meals, since         otherwise. Should use of the poles not be publicly        Human Services
food made in the prison kitchens would not be             available, the ACLU argued that it would violate
                                                                                                                    New Jersey Supreme Court/Direct
Kosher, but the outside Kosher meals are all vegetar-     the Establishment Clause if preferential access were
                                                                                                                    Lenora Lapidus, ACLU Women's Rights Project; Sherry
ian. The inmates sued, based on free exercise and         provided for the Eruv Association’s religious pur-
                                                                                                                    Leiwant, Spenta Cama, Martha Davis/NOW Legal Defense &
equal protection grounds. The district court granted      poses. Further, the ACLU-NJ argued that if the
                                                                                                                    Educational Fund; Lawrence S. Lustberg, Risa
summary judgment to the State because it held that        court did not find an Establishment Clause viola-
                                                                                                                    Kaufman/Gibbons, Del Deo, Dolan, Griffinger & Vecchione
mainstream Islam does not require that Halal meats        tion, the Eruv Association’s free exercise rights
be eaten and, therefore, providing vegetarian Halal       must be considered and that the Borough should               On August 4, 2003, the New Jersey Supreme
meals was sufficient accommodation of their reli-         have to demonstrate that the decision to deny their       Court held that the “Child Exclusion” provision of
gious practice. The Third Circuit reversed the rul-       request was prompted by legitimate concerns and           New Jersey’s welfare law did not violate the State
ing, holding that so long as the beliefs are “sincerely   not by animus towards the Eruv Associations’ reli-        Constitution. In 1997, the ACLU-NJ filed a class
held,” the court should not assess whether others in      gion. Hearings were held on the factual issues. The       action lawsuit challenging the Child Exclusion pro-
the religion believe the same way. The case was sent      District Court found that the poles were not open         vision, which denies welfare benefits to any child
back to the District Court and the State again moved      forums and that discriminatory intent was not the         whose family was receiving benefits when the
for summary judgment. The court assigned ACLU-            motivating factor in the denial of the Eruv               child was born. We argued that this denial, which
NJ Legal Director Ed Barocas to represent the             Association’s request. The plaintiffs appealed. On        will cause severe injury to poor children, violates
inmates. Through negotiation the prison agreed to         January 4, 2002, the ACLU-NJ submitted an amicus          the Equal Protection Clause of the New Jersey
make Halal meats available for purchase by inmates        brief supporting the District Court’s ultimate con-       Constitution because it irrationally treats similarly
through the prison commissary. The inmates’ case is       clusion. However, we differed from the lower court        situated children differently based on the timing
continuing, as they further contend that the state        in two respects: 1) we argued that the                    and circumstances of their birth. We also argued
must pay for the Halal meats. In January 2003,            Establishment Clause affirmatively bars the town          that the law violates a woman's rights to privacy
Barocas was removed as counsel based upon a con-          from granting selective use of the utility poles to       and reproductive freedom because it coerces poor
flict that arose. This case was closed in 2003.           the religious organization; and 2) we argued that         women in their childbearing decisions regarding
                                                                                                                    whether to become pregnant and whether to have
                                                                                                                    an abortion if they do become pregnant. The New
                                                                                                                    Jersey Supreme Court affirmed the decision of the
 Parental Rights                                                                                                    lower courts, finding that the failure to provide the
                                                                                                                    additional benefits that would normally be afford-
                                                                                                                    ed does not infringe upon a woman's right to have
State Supreme Court “Visits” Issue                                                                                  a child. Specifically, the Court held that “even if we
of Government Interference with                           child” standard. We further argued that the bur-          assume that procreative choices are influenced by a
                                                          den of proof in such cases should increase from a         cap on cash assistance to the family unit, we do not
Parental Rights                                           “preponderance of the evidence” standard to a             find that influence to be ‘undue,’ or that a new bur-
Moriarity v. Brandt                                       “clear and convincing” standard. The current              den is thereby created.…Indeed, the family cap
                                                          standards fail to give adequate protection to par-        appears to do no more than place welfare families
New Jersey Supreme Court/Amicus                           ents’ rights. The State Supreme Court agreed with         on a par with working families [who also must
Ron Chen/Rutgers Constitutional Litigation Clinic         the ACLU-NJ that that the question for judges to          decide whether or not to have another child based
                                                          address in such visitation cases was not what is in       upon financial circumstances].” The ACLU-NJ now
  On July 14, 2003, the New Jersey Supreme                the “best interest of the child” but, rather,             hopes to address this wrong-headed law through
Court upheld New Jersey's Grandparent                     whether visitation is “necessary to avoid harm to         legislative efforts. This case was closed in 2003.
Visitation Statute, N.J.S.A. § 9:2-7.1. The ACLU-         the child.” The Court nevertheless upheld the
                                                                                                                                                            Criminal Justice
NJ had filed an amicus brief arguing that the             “preponderance of the evidence” standard for
grandparent visitation statute in New Jersey was
unconstitutional because it allows a court to grant
                                                          making such a showing. In November 2003,
                                                          Moriarity petitioned the US Supreme Court to                  Sooner                              Cyber-Liberties

                                                                                                                                                             Death Penalty
grandparents and siblings visitation, over the            review the case. We await the Court's decision as
objection of fit parents, on a “best interest of the      to whether it will hear the case.                                                                 Disability Rights

                                                                                                                         Later                                  Drug Policy

 Immigrant Rights                                                                                                      Everyone
                                                                                                                                                               Free Speech


ACLU-NJ Challenges Smorgasborg of
       N                                                  and state civil rights laws. The women were not
                                                                                                                        Needs                              Immigrant Rights

                                                                                                                                                        Lesbian/Gay Rights
Discrimination at Chinese Buffet                          paid wages or overtime, were required to pay a
                                                          $15-$18 daily kickback to their employer, a por-                                                 National Security
Li Min Hong, et al. v. King Chef, et al.
US District Court/Direct
                                                          tion of their tips were diverted to the restau-
                                                          rant, and tips were reduced for rent and other                 ACLU                              Police Practices

                                                          expenses, in violation of New Jersey labor laws.
                                                                                                                        Join us today!
Alix Rubin/Lowenstein Sandler; Lenora Lapidus, Jennifer
Arnett Lee/ACLU Women's Rights Project                    They were also assigned tables only after the                                                              Privacy
                                                          male waiter's tables were full. These actions fol-
                                                                                                                                                             Racial Equality
  The ACLU-NJ, in cooperation with the ACLU               lowed on the heels of the filing of a lawsuit by             American Civil Liberties Union
Women’s Rights Project, represents three                  four other immigrant employee workers. We                           of New Jersey             Reproductive Rights
female Fukanese immigrants who were discrim-              obtained a $3.4 million default judgment against                     P.O. Box 750                 Students Rights
inated against by King Chef Restaurant in                 the defendants, entered because the defendants                    Newark, NJ 07101
Wayne, NJ. The complaint claims that the                  never responded to the complaint. However,                                                          Voting Rights
women suffered unequal terms and conditions               the defendants have now come forward and                                                         Women’s Rights
of employment based on their race and/or eth-             want to reopen the judgment. The matter has                        info@aclu-nj.org
nic origin, and gender, in violation of federal           been briefed and we await a ruling by the Court.                     www.aclu.org               Workplace Rights
2003-2004 Legal Docket                                                                                                                                             Page 7

 Poverty Rights
Police Attempt to Railroad Homeless                         the actor complied with all lawful conditions              contaminated housing. The Departments of
Woman Out of Train Station                                  imposed on access to or remaining in the struc-            Human Services and Health and Senior Services
                                                            ture.” The ACLU-NJ will ask that the case be dis-          have agreed to work with our coalition of con-
State v. Kathy Matura                              NEW      missed, as the station is open to the public (as, in       cerned organizations to develop pilot projects in
Hoboken Municipal Court/Direct                              fact, the station has not only a ticket counter for        Camden and Irvington. We seek to determine
Bruce Rosen/McCusker Anselmi Rosen Carvelli & Walsh         train tickets but also a waiting room and a food           what types of activities and interventions increase
                                                            court) and that Matura was not violating any “con-         the lead screening rates of children and improve
  The ACLU-NJ represents Kathy Matura, who                  dition imposed on access or remaining in the struc-        the quality of case management services to lead-
was charged with defiant trespass for refusing to           ture.” Matura was in fact holding a ticket for a train     burdened children. The project provides for
leave the Hoboken train station. Matura is home-            later that day.                                            aggressive parental education regarding the
less but does not stay overnight in Hoboken. She                                                                       effects of lead on their children and the impor-
uses her money to buy round-trip tickets from the                N
                                                            ACLU-NJ Helps to “Get the Lead Out”                        tance of testing, while at the same time provides
town where she stays overnight to Hoboken, so                                                                          pediatricians with a simple and inexpensive
that she can spend her days with friends in the                  N
                                                            ACLU-NJ v. Michele Guhl, Comm. of Dept. of                 means of screening children for lead using what is
Hoboken area. She has complained of numerous                Human Services                                             known as the filter paper method. The filter paper
instances of harassment by police at the station,           Negotiation/Advocacy                                       method allows doctors to do lead screenings in
included being kicked out of the train station              Robin Dahlberg/National ACLU Legal Department              their offices with a simple finger stick blood
despite having a train ticket and being barred from                                                                    draw. This method is intended to encourage doc-
using the bathroom and phones. On January 12,                 The ACLU-NJ, along with the National ACLU                tors to provide screenings in their offices, rather
2004, after meeting in the station with a friend            and other advocacy organizations, has engaged in           than referring patients to secondary laboratories
who works in the area, an officer told Matura to            sustained advocacy around the issue of lead poi-           for such tests, a practice which has proven a sig-
leave the station. Matura refused, stating that it          soning in New Jersey. We have documented                   nificant barrier for many parents. During the last
was not illegal for her to be there. The officer            many shortcomings in New Jersey’s lead preven-             week of September 2002, the ACLU and its coali-
charged her with Defiant Trespass. However, a               tion programs including inadequate blood screen-           tion partners held press conferences in Camden
defense to defiant trespass is that “The structure          ing rates, failures to provide follow-up care to           and Irvington to announce the pilot projects.
was open at the time to members of the public and           lead burdened children, and failures to abate lead         Those efforts are ongoing.

 Privacy                                                                                                                Due Process
Home Address Privacy Rights                                 Hospital Took Blood, DYFS Took                                       L
                                                                                                                       Judge Red-Lights Car Forfeiture Law
Protected                                                   Child from HIV Positive Mother                             State v. One 1990 Ford Thunderbird           NEW
A.A., et al. v. State                            NEW        Doe v. DYFS                                                Superior Court of New Jersey, Appellate
of New Jersey, et al.                                       New Jersey Superior Court, Law Division,                   Division/Amicus
New Jersey Superior Court, Law Division, Mercer County/     Mercer County/Direct                                       Ed Barocas/ACLU-NJ
Direct                                                      Ed Barocas/ACLU-NJ
Lawrence Lustberg, Jennifer Ching/Gibbons, Del Deo,                                                                      On March 19, 2003, the ACLU-NJ filed a brief
Dolan, Griffinger & Vecchione                                 On June 29, 2000, the ACLU-NJ filed a lawsuit on         supporting a challenge to New Jersey’s civil for-
                                                            behalf of an HIV positive woman and her newborn            feiture statute. Under the civil forfeiture laws of
   On October 23, 2001, the ACLU-NJ, in coopera-            child. The woman’s blood was tested for HIV without        New Jersey, county prosecutors (or the Attorney
tion with the Office of the Public Defender, filed a        her written consent or authorization. Later, after she     General) can seize funds and property “utilized
case in the United States District Court challenging        gave birth, the child was removed from her custody         in furtherance of an unlawful activity.” The same
the Sex Offender Internet Registry Act and the              based upon her refusal to provide AZT to the new-          county prosecutor’s office then determines how
State Constitutional Amendment, which strips sex            born. The case was filed in the United States District     to distribute the funds, and may retain some of
offenders of rights under the state constitution.           Court against the New Jersey Division of Youth and         the funds for itself and/or the law enforcement
The complaint raises claims regarding the rights to         Family Services and Capital Health System, Inc. for        agency that seized the funds. The ACLU has
privacy, equal protection and to be free from               discriminatory policies and unlawful treatment of          opposed civil forfeiture laws because they violate
retroactive punishment. On December 6, 2001, the            plaintiff. The complaint alleged constitutional and        due process, punish people twice for the same
District Court judge precluded the State from               statutory violations stemming from an unauthorized         offense, and give police incentive to arrest
including registrant’s home addresses, but permit-          HIV test, breach of confidentiality, and interference      offenders with desirable assets. They also often
ted all other information to be disclosed on the            with custodial and parental rights. It also alleged that   leave family members in dire straits when family
website. Both sides appealed the decision. On June          DYFS filed false affidavits with the court, which stat-    assets are forfeited and family wage earners go to
25, 2003, the US Court of Appeals for the Third             ed that the woman was drug involved at the time of         prison. Carol Thomas, who lost her 1990 Ford
Circuit ruled that, while citizens do have a consti-        her pregnancy, in an effort to remove the child from       Thunderbird to forfeiture after her son was
tutionally-protected right to privacy in their home         the woman’s custody. In June 2002, we settled the          caught using it to sell drugs, sued the State. She
addresses, the inclusion of home addresses on the           case with DYFS, which agreed that failure to provide       argued that the forfeiture laws, and the seizure of
Internet Sex Offender Registry did not violate reg-         AZT would not be a per se reason to take away a child.     her vehicle pursuant to those laws, violate her
istrants’ privacy rights, as the State’s interest in dis-   In December 2002, the court ruled on the additional        Due Process rights because the police who seized
closure outweighed the constitutional privacy               defendants’ dismissal motion. While the court dis-         the property and the prosecutor who decided to
interest. The Court relied upon a ruling by the             missed claims against various individual defendants,       go forward with the case derive substantial insti-
United States Supreme Court (decided while this             the court permitted claims against Capital Health          tutional gain from the forfeitures they initiate
case was on appeal) in which the Alaska Sex                 Systems to remain and allowed the plaintiff to amend       and prosecute. The Superior Court judge in
Offender Registry was upheld. In that ruling, the           the complaint to add additional bases for violations       Cumberland County sided with Thomas and
Supreme Court ruled that the disclosure of home             under the New Jersey Law Against Discrimination            against the State. The judge noted that, although
addresses was necessary for the efficacy of the reg-        and the Americans with Disabilities Act. In                guidelines assure that the funds can’t be used
istry. In November 2003, the district court judge           September 2003, the Court dismissed the remaining          directly for salaries, forfeiture monies were used
determined that the only remaining federal claim            federal claims against the defendants, although            by prosecutors and law enforcement for such
(based upon the right to equal protection) would            numerous state claims remained. As such, the Court         things as rent for a motor pool crime scene facil-
require the court to interpret a state law and, as          permitted the plaintiffs to withdraw the case and file     ity, office furniture, computer equipment, auto-
such, permitted plaintiffs to withdraw the case             the remaining claims (including the breach of confi-       mobiles, fitness equipment, etc. The judge found
from federal court and re-file the case in state            dentiality and the unauthorized testing claims) in state   that the amount of gain that they received from
court. The case was re-filed in New Jersey Superior         court. The case was refiled in the New Jersey Superior     forfeitures in the past three years was so great
Court in Mercer County in January 2004.                     Court in Mercer County on October 21, 2003.                that it “exceeded the limitation on the financial
                                                                                                                       and personal interest of one in a prosecutorial
          Join the ACLU-NJ Electronic Activism and Information Network!                                                function which may be allowed in order to avoid
                                                                                                                       a due process challenge.” On appeal, the ACLU-
   Sign up to receive e-mail alerts on critical civil       to determine your legislative district for legislative     NJ filed a brief explaining that the lower court’s
liberties issues, opportunities to advocate for free-       action opportunities.                                      decision is consistent with the numerous New
dom, the ACLU-NJ's latest legal actions, and infor-           We promise not to bombard you (we generally              Jersey Supreme Court cases which seek to limit
mation about upcoming ACLU programs and                     send 1-2 notices per month) or share your                  the discretion of police and prosecutors and
events in your area. Join today by sending an e-mail        information. Please join today to become a more            which seek to root out arbitrariness and lack of
with your name, address and e-mail address to:              active and effective voice for civil liberties. Please     uniformity in law enforcement and prosecution.
activist@aclu-nj.org. We need your mailing address          join today, activist@aclu-nj.org.                          On November 5, 2003, the ACLU-NJ was grant-
                                                                                                                       ed permission to participate in oral argument.
                                                                                                                       We await a date for oral argument.
Page 8                                                                                                                                                  2
                                                                                                                                                   2003-2004 Legal Docket

Over-Committed Process Challenged                       “beyond a reasonable doubt” standard so that an
                                                                                                                    Issue of “Double-Trouble” In NERA
By Patients                                             inordinate number of people are not improperly              Case
Timendequas, et al. v. Brown, et al.                NEW denied their right to freedom from restraints. The          State v. Natale
                                                        case will now proceed in the discovery phase.
United States District Court/Direct                                                                                 New Jersey Supreme Court/Amicus
Ron Chen/Rutgers Constitutional Litigation Clinic                                                                   Steven G. Sanders, Arseneault & Fassett
                                                           ACLU-NJ Argues that Megan’s Law
                                                           Internet Registries Invoke Retroactive
  The Court assigned the ACLU-NJ to serve as                                                                          The ACLU-NJ joined the Association of
counsel in a case involving the due process rights of
                                                           Punishment                                               Criminal Defense Lawyers of New Jersey (ACDL-
sex offenders who complete sentences at Avenel             Smith v. Doe                                             NJ) as amicus in this criminal law matter involv-
(New Jersey’s sex offender prison) and are then                                                                     ing double jeopardy and due process. The defen-
                                                           U.S. Supreme Court/Amicus
directly committed to the Sex Offender                                                                              dant was convicted of second-degree assault.
                                                           Ed Barocas/ACLU-NJ; Michael Buncher, Brian Neff/Public
Commitment Unit at Kearny under the Sex                                                                             Under the No Early Release Act (NERA), if the
                                                           Defender’s Office
Offender Civil Commitment Statute. The case                                                                         offense included a finding of the defendant hav-
presents three key due process violations. First,                                                                   ing caused serious bodily injury, there would be
Avenel psychiatrists discuss an offender’s treat-            In August 2002, the ACLU-NJ filed a joint ami-         an enhanced sentence. The court was unable to
ment with the psychiatrists who make the deter-            cus brief with the New Jersey Public Defender’s          determine in this case whether, in finding the
mination of whether to commit the offender to              Office and the New Jersey Association of Criminal        defendant guilty of the second-degree offense,
Kearny. This runs counter to an Appellate Division         Defense Lawyers on the issue of whether Alaska’s         the jury found that he did cause serious bodily
decision that prison psychiatrists owe a duty of           Sex Offender Internet Registry inflicts punishment       injury or simply attempted to cause serious bodi-
care to their clients that includes confidentiality,       in violation of the Ex Post Facto and Double             ly injury – but the judge gave the defendant the
even against disclosure to prison authorities (unless      Jeopardy Clauses of the U.S. Constitution. The           greater sentence anyway. On November 20,
there is a threat of future harm to an identifiable        Alaska law is similar to New Jersey’s Sex Offender       2003, the New Jersey Supreme Court held that, if
person). Second, the prisoners are transferred to          Internet Registry Act, against which we have filed       the State elects not to proceed to a new trial for a
the Kearny Unit without first having a hearing to          a challenge (see A.A., et al. v. State of New Jersey,    jury finding on the issue of whether defendant
challenge the initial commitment papers. We claim          et al. above, under Privacy Rights cases). On March      did cause serious bodily injury, the trial court
that, pursuant to New Jersey court precedent, a            5, 2003, the U.S. Supreme Court held that Alaska’s       must re-sentence the defendant without applying
pre-deprivation, rather than a post-deprivation,           Internet Megan’s Law registry is remedial as             the heightened sentencing provisions of NERA.
hearing is required. Third, it appears that a much         opposed to punitive, and thus does not violate the       In the event that the State seeks to have the court
greater number of inmates are being committed              Ex Post Facto or Double Jeopardy Clauses of the          impose an enhanced sentence, the court must try
than statistics show are actually a danger. While          Constitution. The Supreme Court wrote: “The pur-         the NERA issue before a jury and the jury must
statistics show that only 9% of sex offenders              pose and the principal effect of notification are to     determine, applying the beyond-a-reasonable-
released from Avenel commit another crime, the             inform the public for its own safety, not to humil-      doubt standard, whether defendant attempted to,
State is committing 35% of Avenel inmates upon             iate the offender. Widespread public access is nec-      or actually did, cause serious bodily injury upon
completion of their sentences. As such, the burden         essary for the efficacy of the scheme, and the atten-    the victim during the commission of second-
of proof on the government should be heightened            dant humiliation is but a collateral consequence of      degree aggravated assault.
from a “clear and convincing” standard to a                a valid regulation.” This case was closed in 2003.

                  Thanks to Our Cooperating Attorneys
This docket describes the numerous and varied civil liberties issues which the American Civil Liberties Union of New
Jersey has litigated during the past year. This docket is dedicated, with our sincere appreciation, to the cooperating attor-
neys who have so generously volunteered their time, without compensation, in defense of civil liberties. Without their
efforts, few of these cases could have gone to trial or been successfully resolved.

                 FRANK ASKIN                                         ROSEMARY DISAVINO, ESQ.                                       TIMOTHY MCCARTHY
      Rutgers Constitutional Litigation Clinic                                                                                       Reitman Parsonnet
                                                                        PHILIP GALLAGHER
                  ROBERT BALIN                              Gibbons Del Deo Dolan Griffinger & Vecchione                               ANNE MCHUGH
               Davis Wright Tremaine                                                                                            Pellettieri, Rabstein & Altman
                                                                         SHAVAR JEFFRIES
             GRAYSON BARBER, ESQ.                          Gibbons, Del Deo, Dolan, Griffinger & Vecchione                            ARTHUR MILLER
                                                                                                                                       Miller & Miller
                RAVINDER BHALLA                                         JULIE GOLDSHEID
                Krovatin & Associates                            NOW Legal Defense & Education Fund                                     LYNN MILLER
                                                                                                                                        Miller & Miller
               SPENTA CAMA                                               GITA GUTIERREZ
     NOW Legal Defense & Educational Fund                   Gibbons Del Deo Dolan Griffinger & Vecchione                            DENISE REINHARDT
                                                                                                                                    Reinhardt & Schachter
                 NANCY CHANG                                            JONATHAN HAFETZ
          Center for Constitutional Rights                  Gibbons Del Deo Dolan Griffinger & Vecchione                              LEWIS ROBERTSON

                   RON CHEN                                               RISA KAUFMAN                                            BRUCE ROSEN
      Rutgers Constitutional Litigation Clinic             Gibbons, Del Deo, Dolan, Griffinger & Vecchione            McCusker, Anselmi, Rosen, Carvelli & Walsh

              JENNIFER CHING                                                 STEVE LATIMER                                              ALIX RUBIN
Gibbons, Del Deo, Dolan, Griffinger & Vecchione                             Loughlin & Latimer                                        Lowenstein Sandler

                   DAVID COLE                                              MATTHEW LEISH                                            STEVEN G. SANDERS
               Georgetown Law School                                      Davis Wright Tremaine                                      Arseneault & Fassett

                 FRANK CORRADO                                         SHERRY LEIWANT                                                 MARC STERN
         Rossi, Barry, Corrado & Grassi, P.C.                   NOW Legal Defense & Educational Fund                              American Jewish Congress

              MARTHA DAVIS                                                      PAUL LEVY                                        ELIZABETH ZUCKERMAN
     NOW Legal Defense & Educational Fund                                      Public Citizen                                       Zuckerman & Fisher

                                                                      LAWRENCE LUSTBERG                                              BENNET ZUROFSKY
                                                            Gibbons Del Deo Dolan Griffinger & Vecchione                              Reitman Parsonnet

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