The opinion of the court was delivered by: ACKERMAN
Under New Jersey's criminal code a person holding public office, whether elective or appointive, must forfeit that office upon his or her conviction of an offense "involving or touching such office." N.J.S.A. 2C:51-2 as repealing N.J.S.A. 2A:135-9. That law also provides that "if the conviction be reversed, he shall be restored, if feasible, to his office . . . with all the rights, emoluments and salary thereof from the date of forfeiture." N.J.S.A. 2C:51-2(b) (2). Plaintiff, Francis Peltack, has brought this suit under the Civil Rights Act 42 U.S.C. §§ 1983, 1985, 1986, against the Borough of Manville and certain public officials of that municipality alleging that the defendants' failure to restore him to his office as Borough Clerk, pursuant to the statute just quoted violated due process.
The case is presently before me on the motion of the Borough for leave to amend its answer, on plaintiff's motion for an order establishing guidelines for a hearing, and on cross motions for summary judgment premised on various theories. Specifically, plaintiff seeks summary judgment on the basis that while New Jersey law requires that he be afforded a hearing prior to his removal from his tenured position, he was not afforded one. The Borough alleges that it is entitled to summary judgment because plaintiff did not comply with the notice requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:8-8, because no hearing was required under state law or because plaintiff had no constitutionally protected property right to continued employment. The individual defendants allege that they are entitled to absolute immunity for their actions taken with respect to plaintiff's office and that plaintiff will be unable to substantiate his claim of conspiracy under 42 U.S.C. § 1985. These motions obviously overlap to some extent.
For the reasons I will set forth, I have determined that plaintiff has a constitutionally protected property interest in restoration to office under § 2C:51-2, the deprivation of which can only be allowed after notice and an opportunity to be heard. Further I have determined that there is no factual dispute with respect to whether plaintiff was afforded the process which was his due. In addition, I will dismiss the Second Count of the complaint for failure to state a claim cognizable under 42 U.S.C. § 1985 and I will dismiss the First Count vis-a-vis the individual defendants.
Fed.R.Civ.P. 56 provides that judgment is not to be granted summarily unless, after all reasonable inferences are drawn in favor of the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See DeLong Corp. v. Raymond Internat'l., 622 F.2d 1135 (3d Cir. 1980). The facts with respect to the chronology of events are undisputed.
Plaintiff was the Borough Clerk in Manville from 1954 until 1977. He attained tenure status after five successive appointments. In March 1977, plaintiff was indicted for conspiracy and misconduct in office involving alleged "kick backs" on municipal vending contracts. By resolution dated March 22, 1977, plaintiff was suspended without pay because of the indictment. Following his conviction in April 1978, plaintiff was given a hearing on the issue of terminating his appointment based upon the charges of conspiracy and misconduct and the forfeiture provision of the criminal code. That hearing was held on June 14, 1978, and resulted in a determination that plaintiff's continued employment "would be incompatible with the welfare" of the Borough. Certification of Beisler, para. 6. In February 1980, plaintiff's conviction was overturned and a new trial ordered.
That trial resulted in October 1980 in plaintiff's acquittal.
By letter dated October 14, 1980, plaintiff's counsel requested the defendants to reinstate the plaintiff to his public office with full pay and benefits, including reimbursement for his defense expenses. The Borough took the matter under advisement, but responded on June 18, 1981 that a settlement could not be reached. The letter also stated that it was the position of the defendants that plaintiff was not entitled to return to office for two reasons: one, the position of Borough Clerk had been abolished in February 1979 and the Council now operated with an Administrator/Clerk for which plaintiff did not qualify educationally;
and two, plaintiff was still considered unfit for public office based upon evidence admissible in a civil proceeding. The letter is ambiguous as to whether a hearing would be accorded plaintiff. It stated: "This now terminates this matter . . ."
On September 18, 1981 plaintiff notified the defendants pursuant to the New Jersey Tort Claims Act of his claim of a violation of his constitutional right to due process. N.J.S.A. § 59:8-8. This suit followed on November 23, 1981. At the beginning of June of this year, plaintiff received written charges from the defendants and notice that a hearing will be held to consider the charges as a basis for terminating his employment. That hearing has been adjourned pending a determination on these motions.
Before I turn my attention to the question of plaintiff's procedural due process rights, I will address the other collateral motions. The Borough argues that plaintiff's complaint should be dismissed because he did not wait for six months from the date his tort claims act notice was received before filing suit. The Borough recognizes correctly, I believe, that an action under the civil rights statutes borrows the limitations period from an analogous state statute of repose. See Johnson v. Railway Express Agency, 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1978). Where the defendant to a civil rights action is a municipality or public entity, this court and others have applied the two-year statute of limitations provided in N.J.S.A. 59:8-8. See Gipson v. Twp. of Bass River, 82 F.R.D. 122 (D.N.J. 1979); and Lloyd v. Borough of Stone Harbor, 179 N.J.Super. 496, 432 A.2d 572 (Ch. 1981). However, the federal action is not thereby restricted to the full parameters of the tort claims act. To incorporate all the procedural provisions of the state statute borrowed for one purpose only would unduly infringe upon the assertion of federally created rights. Gipson, supra. 82 F.R.D. at 126; and Paschall v. Mayone, 454 F. Supp. 1289, 1298 (S.D.N.Y.1978).
Here while plaintiff filed a notice of claim, defendant points out that he did not allow six months to expire before filing suit thereby violating the conciliatory spirit of the statute. I find that the six month repose period cannot be appended to a federal civil rights suit for the reasons articulated in the cases just cited with respect to the notice provision. In addition there are two reasons why such a result would be unjust. First, the statute itself does not "forever bar" a state claim that has been filed too close on the heels of the notice. Second, in this instance, there has already been a six month opportunity for settlement sufficient to satisfy the act's conciliation purpose. This was the period between plaintiff's demand for reinstatement in October 1980 and defendant's response to that demand in July 1981. Settlement of this dispute has clearly been considered and discussed by the parties albeit prior to the filing of the tort claims notice. Negotiations having failed, plaintiff is entitled to take his case to court. Nothing would be served by interposing additional delay into this action. I will therefore deny the Borough's motion to dismiss on this ground.
This brings me to the Borough's motion for leave to amend its answer under Fed.R.Civ.P. 15(a). The defendant seeks to correct a date cited in para. 21 of its answer and to assert a new separate defense premised on the New Jersey Tort Claims Act. Rule 15(a) provides that "leave shall be freely given when justice so requires." I can see no reason to deny defendant's request although in light of my previous determination, it may feel that its second requested amendment is superfluous.
There is one more motion which is not directly related to plaintiff's claim of procedural due process: the individual defendants have moved for summary judgment on the plaintiff's Second Count which alleges a conspiracy on the part of the defendants to deprive plaintiff of his constitutional rights. The two acts alleged to have furthered the conspiracy are the 1979 resolution transforming the position of Borough Clerk and the denial of a reinstatement hearing after plaintiff's October 1980 acquittal. The defendants argue on this motion that discovery has revealed no facts through which plaintiff can prove a conspiracy among these named defendants. My review of the law under 42 U.S.C. § 1985 reveals a more fundamental problem with plaintiff's Second Count. Plaintiff has not alleged nor are there any facts in the record which could establish the existence of any discernable class of which plaintiff was a member. See Kent Island Joint Venture v. Smith, 452 F. Supp. 455 (D.Md.1978). The law is clear that to state a valid claim under § 1985(3) a plaintiff must allege "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971). As the plaintiff did in Kent Island, plaintiff here appears to have "seized upon the word 'conspire' without considering the context in which the word was used in the statute." 452 F. Supp. at 459. I must therefore dismiss this Count of the complaint.
I turn now to what must be considered the heart of plaintiff's complaint: the failure of the defendants to provide him a hearing on his request for reinstatement pursuant to § 2C:51-2 in violation of his right not to be deprived of property without due process of law. As the Supreme Court recently stated in Logan v. Zimmerman Brush Co., 455 U.S. 422, , 102 S. Ct. 1148, 1153, 71 L. Ed. 2d 265 (1982), the analysis of a due process clause claim is conducted by means of a "familiar two-part inquiry": one, whether the plaintiff was deprived of a protected interest; and two, if so, what process was his due. For this first prong, I must look to New Jersey law: "A property interest may not be derived from the due process clause itself but must be created and defined by some independent source such as state law." Bagby v. Beal, 439 F. Supp. 1257, 1259 (M.D.Pa.1977) (denying defendants' motion to dismiss), 455 F. Supp. 881 (1978) (findings of fact and conclusions of law), vacated as moot, 606 F.2d 411 (3d Cir. 1979). See also Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); and Pedersen v. South Williamsport Area School District, 677 F.2d 312 (3d Cir. 1982). As Justice Blackmun in Logan noted, "The hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except 'for cause.'" supra, U.S. at , 102 S. Ct. at 1155.
The statute at issue here, N.J.S.A. 2C:51-2(b) (2) provides, as quoted earlier: "If the conviction be reversed, he shall be restored, if feasible, to his office . . . with all the rights, emoluments and salary thereof from the date of forfeiture." This statute went into ...