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GEWERTZ v. JACKMAN

March 29, 1979

Kenneth A. GEWERTZ, In his capacity as a member of the New Jersey General Assembly and Individually, Plaintiff,
v.
Christopher J. JACKMAN, In his capacity as Speaker of the New Jersey General Assembly and Individually, New Jersey General Assembly Democratic Caucus, Albert Burstein, in his capacity as Chairman of the New Jersey General Assembly Democratic Caucus and Individually, Defendants



The opinion of the court was delivered by: BROTMAN

This is one of the rare cases in which a federal court is asked to intervene in the affairs of a state legislative body. Plaintiff Kenneth A. Gewertz, a member of the New Jersey General Assembly, claims that his rights of free speech, due process, and equal protection, as guaranteed by the first and fourteenth amendments to the United States Constitution were violated when he was removed by the Speaker from the Assembly Appropriations Committee.

Plaintiff contends that his involuntary removal from this committee, an action upheld by a majority vote of the Assembly's Democratic Caucus, was in retaliation for his public criticism of a New Jersey state senator and of the governor, his outspoken disagreements with the Speaker and democratic party leadership, and his frequent failure to support their proposed legislation. Defendants are Christopher J. Jackman, individually and in his capacity as Speaker of the Assembly; the New Jersey General Assembly Democratic Caucus; and Albert Burstein, individually and in his capacity as Chairman of the Assembly Democratic Caucus. They deny any retaliatory motive for the removal, countering that plaintiff was removed to accommodate a representative from Essex County to replace a committee member from that county who had earlier resigned from the Assembly.

 On February 16, 1979, plaintiff applied to this court for a preliminary injunction directing defendants to reinstate him as a member of the Appropriations Committee. He simultaneously filed a complaint seeking a permanent injunction and damages. The action is premised on 42 U.S.C. §§ 1983 and 1985(3). The court has jurisdiction pursuant to 28 U.S.C. § 1343(3).

 FINDINGS OF FACT

 Plaintiff is a democrat who represents the Fourth District in the New Jersey General Assembly, a district comprising parts of Gloucester, Camden and Burlington Counties. Plaintiff resides in Gloucester County, and has been a member of the Assembly since 1971. Tr. I 116.

 He has a reputation for being outspoken, and has expressed frequent opposition to the leadership of his party, which is the majority party in the Assembly. He has also expressed opposition to the governor, who is a democrat as well. Tr. I 41-42, 80, 82, 111-12, 121; Tr. II 30; Tr. IV 10. For example, at a meeting of democratic representatives held at the Forsgate Country Club in November of 1978 to discuss the budget, plaintiff's vocal opposition to the governor's proposals and to the democratic leadership led to a loud disagreement with the Speaker, and plaintiff eventually left the meeting. Tr. I 74-76, 117-21; Tr. II 45-48. In early January of 1979, plaintiff filed charges with the Joint Ethical Standards Committee alleging a conflict of interest against State Senator Steven Perskie; hearings on those charges were held on January 25, 1979. Tr. I 131-32. News of the charges was reported in the press. Tr. IV 12.

 Plaintiff's actions with respect to Senator Perskie caused distress to some members of the democratic leadership, including the Speaker and Majority Leader. Tr. I 131-32; Tr. IV 14. However, plaintiff is not the only outspoken Assembly person who has disagreed with or criticized Assembly leaders or the administration. Tr. I 50-52, 78, 82; Tr. II 24-25; Tr. III 18-20; Tr. IV 10, 25. Controversy between representatives is a regular and accepted part of the legislative process. Tr. I 42, 51, 78, 112-14; Tr. IV 11, 28.

 It is uncontested that plaintiff was an able and diligent member of the Appropriations Committee, and it was so stipulated by defendants. Tr. I 17, 37, 68, 151; Tr. II 8, 82; Tr. IV 50.

 At the beginning of each session of the Assembly, the Speaker appoints members to the various legislative committees, pursuant to General Assembly Rules 4:6 *fn2" and 10:1. The latter rule, entitled "Standing Committees," describes the various committees, their respective subject areas and number of members, and further provides:

 
The Speaker shall appoint a chairman and vice-chairman for each standing reference, administrative and special committee. In the absence of the chairman, the vice-chairman shall preside at any meeting of the committee duly convened by the chairman. In case of the disability of a chairman, the vice-chairman shall, with the approval of the Speaker, assume all the responsibilities of the chairman. The chairman, vice-chairman, and all other members of each committee shall serve at the pleasure of the Speaker, but no committee member shall be removed from his committee assignment except for good cause.

 The practice has been for each representative to submit to his party leader a list of three committee choices, and the majority and minority leaders amend the lists and in turn submit them to the Speaker. Tr. I 28, 36, 51. While the Speaker has generally acquiesced to the wishes of the party leaders, he has full discretion to make final committee appointments. Tr. I 15-16, 52, 54, 67; Tr. IV 69-72, 75. There are no fixed criteria by which the Speaker makes the selection, Tr. IV 72-74, 76-77, and this is generally considered a matter within his prerogative. Tr. I 34; Tr. IV 24.

 There are four categories of committees, including Standing Reference Committees (of which the Appropriations Committee is one of fourteen), Standing Administrative Committees, Joint Committees, and one Standing Special Committee called the Legislative Oversight Committee (of which plaintiff is currently the chairman). Tr. IV 77-80.

 Standing reference committees review and amend proposed legislation prior to its introduction for a vote of the full Assembly. Tr. I 21, 39-40, 44; Tr. IV 78. By contrast, the Legislative Oversight Committee does not review legislation prior to its passage, but investigates the execution of enacted laws. Tr. I 39-40, 74; Tr. IV 78. Assemblypersons derive a substantial benefit in representing their districts from membership on standing reference committees, since it gives them the direct opportunity personally to influence the details of legislation. Tr. I 20-21, 24, 29, 31, 44, 45, 47, 58, 72, 153-54; Tr. II 80. Thus, an Assemblyman would never be able to exert the degree of influence on the budget later before the full Assembly as he would now through membership on the Appropriations Committee. The major work on the 1979-1980 budget of that committee and of the Joint Appropriations Committee (which includes all members of the Assembly Appropriations Committee) covers the months January through May, 1979. Tr. I 19-20, 30-31. The stage during which members hold hearings with administration cabinet officials ended on March 15, and the committee is now holding public hearings. Tr. III 111.

 Before plaintiff's removal from the Appropriations Committee, every Assemblyperson not in a leadership position was a member of at least one standing reference committee. Tr. I 26, 48, 146; Tr. IV 56. Plaintiff does not currently hold a leadership position. Tr. I 117.

 In November 1978, Assemblyman Peter Shapiro, a democrat representing District 28, comprised of parts of Essex County, was elected county executive. Tr. III 87. Mr. Shapiro was then vice-chairman of the Appropriations Committee, as well as a member of the Taxation Committee. Tr. III 88. He resigned from the Assembly on January 8, 1979. Tr. III 88, 96.

 Both prior to and after his resignation, Mr. Shapiro and Assemblyman Richard Codey, who heads the Essex County delegation, repeatedly pressured the Speaker to appoint another Essex County democrat to the Appropriations Committee in the place of Mr. Shapiro. Tr. III 90-105; Tr. II 63. There is one Republican member of that committee from Essex County, and her district comprises mainly suburban portions of that county. Tr. I 115; Tr. III 91; Tr. IV 37. The county is heavily democratic. Tr. III 92. In addition, there was concern among the democrats of the Essex County delegation that urban areas of the county were not adequately represented on the Appropriations Committee. Tr. III 95-104, 112; Tr. IV 16-17. Essex County has the largest delegation in the Assembly, and the Speaker was reminded that the delegation could refuse to cooperate with him should its concerns not be heeded. Tr. III 97, 104.

 In December 1978 and January 1979, there were rumors that plaintiff was to be removed from the Appropriations Committee. Tr. I 41, 99; Tr. II 57; Tr. IV 13. Plaintiff was made aware of the pressure being brought to bear by the Essex County delegation for democratic representation on the Appropriations Committee. Tr. II 63, 125. In addition, plaintiff testified that he had a series of conversations during that period, primarily with the Speaker but also with other members of the democratic leadership, during which he was threatened with removal from the Appropriations Committee because of his outspokenness. Plaintiff testified that the Speaker on a number of occasions told him he was being pressured by the administration to remove plaintiff. Tr. I 122, 124-25, 130, 132; Tr. II 49-50, 53-55, 75-76. Plaintiff also testified that when he confronted Majority Leader Burstein with the rumors concerning his removal, the Majority Leader stated that removal was, in effect, a sanction for the filing of ethics charges against Senator Perskie. Tr. I 131; Tr. II 56. However, Mr. Burstein specifically denied making such a statement, although he acknowledged discussing plaintiff's rumored removal with him. Tr. IV 14-15.

 On February 13, 1979, the Speaker officially informed plaintiff of his removal from the Appropriations Committee at a meeting in the Speaker's office. He gave plaintiff a signed letter, dated January 25, 1979, stating that he was being replaced by Assemblywoman Mildred B. Garvin, but citing no reason for this action. Plaintiff's Exh. 1; Tr. I 133-34. Mrs. Garvin represents urban areas of Essex County and was the choice of that county's delegation to serve on the Appropriations Committee. Tr. III 102, 107, 109. Plaintiff demanded to bring the Speaker's action to the attention of the Democratic Caucus, and he was afforded this opportunity at the next regularly scheduled conference. Tr. I 135-38.

 The Democratic Caucus is a body comprised of a majority of Assembly members. Tr. I 98. There was a discussion concerning whether the matter of plaintiff's removal could be taken to the Assembly floor, or whether it was an administrative decision solely within the discretion of the Speaker. Tr. I 136; Tr. II 35; Tr. III 28-33; Tr. IV 23-24. As a condition of the Caucus' entertaining a discussion and vote on the matter, plaintiff agreed not to bring it to the floor of the full Assembly. Furthermore, he ...


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