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FREEMAN & BASS, P.A. v. NEW JERSEY COMMN. OF INVES

April 6, 1973

FREEMAN and BASS, P.A., et al., Plaintiffs,
v.
STATE OF NEW JERSEY COMMISSION OF INVESTIGATION et al., Defendants


Garth, District Judge.


The opinion of the court was delivered by: GARTH

The complaint in this action was brought by Freeman & Bass, P.A., a law firm, and by Samuel Bass and Samuel Freeman individually as plaintiffs against the New Jersey State Commission of Investigation (hereafter SCI), and John F. McCarthy, Jr., Charles L. Bertini, Wilfred P. Diana, Ronald S. Diana, Ronald Heymann, Charles Rosen, and Martin G. Holleran individually. This written opinion incorporates the substance of an oral opinion delivered from the bench on February 26, 1973 on plaintiffs' application for a temporary restraining order pending a hearing for a preliminary injunction to enjoin defendants from:

 
(1) further investigating plaintiffs' professional and personal activities;
 
(2) further investigating, intimidating, or interviewing plaintiffs' clients, employees and agents;
 
(3) enforcing all outstanding subpoenas. *fn1"

 Plaintiffs allege in their verified complaint that this court has jurisdiction by virtue of 42 U.S.C. §§ 1982, 1983 and 1985. 42 U.S.C. § 1982 deals with the right to convey personal and real property, and I do not see any relevance of this particular section to the claim asserted by plaintiffs. Sections 1983 and 1985 create federal causes of action for the deprivation under color of state law of the constitutional rights of citizens. By themselves, these sections are not jurisdiction conferring; they are cognizable as actions in federal court only by virtue of 28 U.S.C. §§ 1343(3) and (4), Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972).

 Plaintiffs further allege that the investigation was conceived and is being conducted against plaintiffs without standards, guidelines, or regulations, to control and determine its scope, and as such, is overbroad and vague in violation of the constitutional rights of plaintiffs. Specific instances of harassment are then cited that allegedly deprive plaintiffs and their clients of their rights. Plaintiffs point, in particular, to the deprivation of the rights of workmen's compensation clients to be adequately represented by counsel in the prosecution of their claims by virtue of the harassment of plaintiffs.

 Two additional counts of the complaint are pendent in nature. I shall defer discussion of them until I determine whether or not I have jurisdiction over the §§ 1983 and 1985 causes of action.

 JURISDICTION

 Defendants allege in their brief that there is no constitutional right to practice law and that therefore plaintiffs have not stated a cause of action under 42 U.S.C. §§ 1983 or 1985. To be sure there may be no constitutional right as such to "practice law." But in opposing plaintiffs' complaint on these grounds, defendants have entirely ignored the gist of the allegations contained therein, to wit that the SCI investigation is being conducted so as to harass and intimidate plaintiffs for their advocacy of unpopular causes. If proved, these allegations would constitute a violation of plaintiffs' First Amendment rights secured to the plaintiffs from infringement by state action through the Fourteenth Amendment. Plaintiffs thus state a cause of action cognizable under 42 U.S.C. § 1983. Taylor v. Kentucky State Bar Ass'n, 424 F.2d 478 (6th Cir. 1970).

 Plaintiffs also allege a violation of the First Amendment rights of their workmen's compensation clients, an allegation given no recognition in defendants' opposing papers. There can be of course no question that plaintiffs have standing to allege the deprivation of their own rights. But whether or not plaintiffs' clients possess First Amendment rights susceptible to protection, and if so, whether or not plaintiffs have standing to assert these rights on behalf of their clients presents a more delicate issue.

 In a series of cases -- NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963); Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 84 S. Ct. 1113, 12 L. Ed. 2d 89 (1964); United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 88 S. Ct. 353, 19 L. Ed. 2d 426 (1967), and most recently, United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S. Ct. 1076, 28 L. Ed. 2d 339 (1971) -- the Supreme Court has decided that associations of working men have the right to hire attorneys and to recommend attorneys to their associates for the purpose of representing these associates in workmen's compensation cases. The court speaks in these cases of an inviolate First Amendment right to be represented by counsel for the advocacy of not only political causes, but also of economic ones. United Mine Workers, supra, 389 U.S. at 223, 88 S. Ct. 353. "At issue," says the court, "is the basic right to group legal action, a right first asserted in this Court by an association of Negroes seeking the protection of freedoms guaranteed by the Constitution. The common thread running through our decision in NAACP v. Button, Trainmen, and United Mine Workers, is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment." United Transportation Union, supra, 401 U.S. at 585, 91 S. Ct. at 1082. Although the cases refer to the associational right to advise others in one's group of differing means of access to the courts, the existence of the associational group right necessarily implies a like right for individuals. It would make no sense for an individual's right of access to legal action to cease to exist, or not to come into existence at all, at the moment he ceases to belong to a group. Impositions upon or obstructions of the right of legal access and legal action, such as are alleged in the plaintiffs' complaint, necessarily infringe upon First Amendment guarantees of the individual whether or not the individual asserts those rights through the medium of group action. See Note, Advertising, Solicitation, and the Availability of Legal Counsel, 81 Yale L.J. 1181, 1186 (1972).

 Plaintiffs' contention that the SCI investigation is deterring its clients from exercising their right of access to legal action by the subpoenaing of confidential attorney client files and by various other means thus alleges a deprivation under color of state law of constitutional rights as would appear to state a cause of action under 42 U.S.C. § 1983 over which the court has jurisdiction by virtue of 28 U.S.C. § 1343(3). Defendants' assertion that plaintiffs' claim constitutes one for infringement of property rights not subject to protection under § 1983 as in National Land & Investment Co. v. Specter, 428 F.2d 91, 98 (3d Cir. 1970) is entirely without merit since the "property-rights" doctrine of that case has been explicitly ...


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