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OLDROYD v. KUGLER

December 21, 1972

Kenneth OLDROYD et al., Plaintiffs,
v.
George F. KUGLER, Jr., Attorney General and Chief Prosecutor of the State of New Jersey, et al., Defendants



The opinion of the court was delivered by: GARTH

Plaintiffs Kenneth Oldroyd, John Joseph, Alan Medvin, Stephen Oppenheimer, Claudia Slovinsky and Lionel Cuffie on July 27, 1970 filed this action on behalf of themselves and the class of persons similarly situated. Defendants are New Jersey Attorney General George F. Kugler, Jr., various named county prosecutors as representatives of the class of New Jersey prosecutors, and a police officer. Plaintiffs alleged the unconstitutionality of N.J.S. 2A:107-2 *fn1" on the First Amendment grounds of vagueness and overbreadth, and requested convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, as well as declaratory and injunctive relief.

PROCEEDINGS

 On August 18, 1970 a three-judge court consisting of Circuit Judge McLaughlin and District Judges Wortendyke and Cohen was convened. That court issued a memorandum order on December 17, 1970, D.C., 327 F. Supp. 176, dismissing the complaint for lack of a substantial federal question, and finding the statute "on it face . . . [to be] precise, clear and constitutional." The Court of Appeals, 3 Cir., 461 F.2d 535, reversed on June 2, 1972, holding that plaintiffs' complaint and affidavits do raise a substantial federal question, and remanded for a decision on the merits. The Court of Appeals stated that except for the issue of jurisdiction, "[all] other issues are left to the disposition of the Three-Judge Court upon remand."

 Judge Wortendyke having retired, District Judge Garth took his place on this court. A new affidavit was requested of and filed by plaintiffs, bringing up to date the facts as to their status. The issues having been completely briefed by all parties, there appears no necessity for another hearing.

 STANDING

 The jurisdiction of federal courts being constitutionally restricted by Article III of the Constitution to "cases" and "controversies," this court must initially look to the standing of each plaintiff. "The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'" Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 1952, 20 L. Ed. 2d 947 (1968); Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

 In Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), a defendant in a criminal case after indictment was held to have "an acute, live controversy with the State and its prosecutor" in an action to declare unconstitutional the state statute under which the indictment was brought. However, three other parties who "do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible," were held not to have standing. 401 U.S. at 42, 91 S. Ct. at 749. The Supreme Court has held that "[because] of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights." Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22 (1965). However, it is not enough that the parties plaintiff claim to "feel inhibited" in the exercise of First Amendment rights. As the Supreme Court held in Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972), "[allegations] of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. . . ." See also Younger v. Harris, supra, 401 U.S. at 37, 91 S. Ct. at 746.

 In the instant case, plaintiff Oldroyd "wore pants with several white stars sewn on them and a red and white striped sash," and was arrested in Seaside Heights on May 31, 1970 and charged with violating N.J.S. 2A:107-2. A hearing scheduled for July 27, 1970 was postponed, pending the outcome of this case.

 Plaintiff Joseph on May 6, 1970 "flew his flag in front of his house in an inverted position with a red cloth, symbolic of blood, flying below," and alleges that he "was intimidated . . . when a magistrate remanded [his] case to a Bergen County Grand Jury" for possible action under N.J.S. 2A:107-2. Action on an indictment returned January 21, 1971 has been postponed pending the outcome of this case.

 Plaintiff Medvin displayed "a small replica of the United States flag, upside down, in a window of his automobile." Medvin asserts he was stopped in August 1970 by a Franklin Township policeman who saw the decal and who told Medvin to remove it, or else he would arrest Medvin the next time he saw him. Alleging fear of arrest and further incidents, Medvin later removed the decal.

 Plaintiff Oppenheimer "displayed in the window of his automobile a decal representing a United States flag with a peace symbol superimposed on the stars and stripes," was arrested in Bronx County, New York for the display, and "fears similar arrest and prosecution under N.J.S. 2A:107-2."

 Plaintiff Slovinsky "joined with fellow students in painting a representation of a United States flag, upside down, on their window in the Katzenbach Dormitory at Douglas College" in New Brunswick, and was informed by her counsel-or-in-residence that two law enforcement officers had advised the counselor "that to defile a United States flag in any way was against the law of the State of New Jersey." Alleging fear of arrest and prosecution under N.J.S. 2A:107-2, Slovinsky then had the flag removed.

 Plaintiff Cuffie "carried an upside down flag pinned to the back of his shirt," was arrested in New Brunswick for violating N.J.S. 2A:107-2 on April 15, 1970 and alleges that at the time of filing this action, his criminal case was pending before the Middlesex County Grand Jury. He was indicted on February 18, 1972, and was found not guilty in a trial ...


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