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October 4, 1984

THOMAS H. KEAN, Defendant

The opinion of the court was delivered by: SAROKIN


 The subject statute may have dealt with that problem and opened the state's doors to combined charity drives only, such as community chests, united funds and united appeals. The state, however, has interpreted its own statute to exclude all charities other than the United Way. It, and it alone, is accorded the right to solicit and utilize state employees during regular business hours in state offices for the purpose of obtaining contributions by payroll deductions. This advantage cannot be overemphasized. It undoubtedly increases the size and number of contributions and guarantees collection. The use of this state service paid for by the taxpayers is granted to the United Way, but denied to the plaintiff and all others.

 The issue thus posed is whether the state having opened its doors and services to one charitable organization can deny access to all others without having established any standards or procedures by which another charity could even be considered. Indeed, part of plaintiff's frustration in this matter arose from its inability for many months to obtain a definitive response to its inquiries and the reasons in support thereof.

 The value and benefit which has been conferred upon the United Way and denied to plaintiff is substantial. Indeed plaintiff does not seek to terminate those benefits as to United Way, but merely to acquire the same for itself. The issue thus posed clearly implicates constitutional questions and confers jurisdiction upon this court. Given the fact that a state statute is involved, it might be preferable to have the state court rule on the constitutionality of the statute in the first instance. Yet, because of the emergent nature of this application, the irrefutable and irreparable harm to the plaintiff if its position is deemed to be correct, and the clear constitutional violation presented, it is incumbent upon this court to act and not to abstain.


 Each year, the State of New Jersey opens its doors to the thirty-one chapters of the United Way, a non-profit corporation formed for the purpose of raising and distributing funds to benefit selected charitable organizations. This year, for over two months, volunteers from the United Way will be granted access to state offices throughout New Jersey for the purpose of soliciting contributions from state employees. During this "Annual State Charitable Giving Campaign," the United Way will present speakers, schedule oral and visual presentations, and distribute written solicitation materials, all providing information about the United Way and the particular organizations it benefits with the aim of encouraging contributions. The campaign is immensely profitable for the United Way: this year, the organization expects to raise over one-half million dollars from state employee contributions. See generally, Affidavit of James G. Crowley, Executive Vice President, Delaware Valley United Way, September 6, 1984, para. 1-9. All of these monies will be channelled directly to the organization from the state payroll pursuant to a state statute, N.J. Stat. Ann. 52:14-15.9c, authorizing payroll deductions to the United Way from the paychecks of employees who have made pledges to the group. Through this deduction system, employees may conveniently spread out a contribution to the United Way over a year. For the United Way, the system is an inexpensive, efficient, and enormously cost-effective means of assuring itself of a large, continuous flow of funds.

 Relying on an advisory opinion by the New Jersey State Attorney General, *fn1" the Governor claims that New Jersey Statute Annotated 52:14-15.9c authorizes access to the payroll deduction system only for the United Way and not for any other independent organization like the BUF/NJ. Though the statute by its terms authorizes payroll deductions to benefit "a United Fund, Community Chest, or United Appeals," the Governor explains that this language refers only to three specific organizations, known by those three specific proper names, that were in existence in 1955, when the statute was passed. The United Way is a direct successor to one of those organizations and is thus presumptively included in the Annual Campaign, according to the Governor. Because the BUF/NJ is not a direct descendent of one of these specific organizations, the Governor concludes, he has no power under New Jersey Statute Annotated 52:14-15.9c to permit the BUF/NJ to join in the Annual Campaign or to mount a separate campaign.

 The BUF/NJ, to the contrary, contends that the statute contemplates access to the payroll deduction system for any charity that is one of a generic group of "United Funds," "Community Chests," or "United Appeals" -- that is, for any umbrella-type charitable organization which, like the United Way, raises and distributes funds for a number of individual charitable organizations. The BUF/NJ challenges the Governor's denial of access to it on the grounds, that inter alia, the action violates the rights of the BUF/NJ to freedom of speech under the first amendment, made applicable to the states through the fourteenth amendment, and violates the BUF/NJ's rights to due process and equal protection under the fourteenth amendment. Specifically, the BUF/NJ contends that the Governor's denial is arbitrary and capricious, an act of unreasonable and standardless favoritism toward the United Way, and an unreasonable denial of the BUF/NJ's right of access to a public forum. To the extent that New Jersey Statute Annotated 52:14-15.9c might be construed to authorize the Governor's action, the BUF/NJ maintains that it, too, is unconstitutional.

 In this motion, the BUF/NJ seeks a preliminary injunction compelling the Governor to permit the BUF/NJ to participate in the 1984 Annual Campaign, which began on September 11, 1984, or, in the alternative, not to permit any solicitation of state employees for so long as the BUF/NJ is excluded from participation. The Governor not only opposes the granting of this relief, but requests the court to abstain from deciding the matter under the doctrine of Railroad Comm'n. of Texas v. Pullman, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). He contends, on one hand, that the statute is constitutional on its face and as applied, but, on the other hand, that if there is any question as to the constitutionality of the statute, resolution of the question necessitates a definitive state court interpretation. Since the statute has never been authoritatively construed by the New Jersey courts, the Governor argues, this court should defer to the state courts without reaching the plaintiff's constitutional claims.


 1. Abstention

 Whether or not this court should abstain is a question preliminary to, yet intimately intertwined with, a consideration of the merits of the plaintiff's case. Abstention is appropriate under Pullman where a "challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question." Kusper v. Pontikes, 414 U.S. 51, 54, 38 L. Ed. 2d 260, 94 S. Ct. 303 (1973). The mere fact that a statute has not been construed by a state court does not compel abstention, Harman v. Forssenius, 380 U.S. 528, 534-35, 14 L. Ed. 2d 50, 85 S. Ct. 1177 (1965), however; nor does a "bare, though unlikely possibility that state courts might render adjudication of the federal question unnecessary." Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 2327, 81 L. Ed. 2d 186 (1984) (emphasis in original). Instead, the statute must be "'obviously susceptible of a limiting construction.'" Id., quoting Zwickler v. Koota, 389 U.S. 241, 251 n.14, 19 L. Ed. 2d 444, 88 S. Ct. 391 (1967). Moreover, because of "the delay and expense to which application of the abstention doctrine inevitably gives rise," England v. Medical Examiners, 375 U.S. 411, 418, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964), the doctrine must be "narrowly limited." Propper v. Clark, 337 U.S. 472, 492, 93 L. Ed. 1480, 69 S. Ct. 1333 (1948). Where "it cannot be fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication, abstention would amount to shirking the solemn responsibility of the federal courts to 'guard, enforce, and protect every right granted or secured by the Constitution of the United States.'" Kusper, 414 U.S. at 55, quoting Robb v. Connolly, 111 U.S. 624, 637, 28 L. Ed. 542, 4 S. Ct. 544 (1884). Abstention "cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim." Zwickler, 389 U.S. at 251.

 The doctrine of abstention is to be invoked especially sparingly where the exercise of first amendment rights might be delayed as a result of a decision to abstain. Baggett v. Bullitt, 377 U.S. 360, 379, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1963); Procunier v. Martinez, 416 U.S. 396, 404, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1973). In first amendment cases, the Supreme Court has recognized that the mere existence of an overbroad or vague statute, though susceptible of a limiting construction, might well operate to chill the exercise of first amendment rights during the pendency of a state proceeding brought to obtain that limiting construction. Baggett, 377 U.S. at 379; Zwickler, 389 U.S. at 250-52. The possibility of this chilling effect by itself justifies a refusal to abstain. Id.

 In light of this authority, the court relies upon two grounds to conclude that abstention is inappropriate here. First, neither one of the two readings given New Jersey Statute Annotated 52:14-15.9c by the parties would render it constitutional. Because these are the only fair readings of the statute, absent a virtual re-writing of it, abstention and referral of the case to a state court would not avoid the constitutional questions raised and would only amount to an abdication of this court's responsibility to decide the federal questions presented to it. Second, even if the statute were easily susceptible of a limiting state construction which might render it constitutional, the statute's ongoing "chilling effect" on potential participants in the Annual Campaign by itself offends the first amendment and makes abstention inappropriate. A consideration of these points convinces the court not only that abstention is inappropriate, but that the plaintiff's complaint has merit and that preliminary relief should be granted.

 2. The Statute

 New Jersey Statute Annotated 52:14-15.9c provides in pertinent part that

Whenever any person holding public office, position or employment, whose compensation is paid by this State . . . shall indicate in writing to the proper disbursing officer his desire to have any deductions made from his compensation for the payment of contributions to a United Fund, Community Chest or United Appeals, such deduction shall be made by the State Treasurer in his discretion, if such compensation is payable by the State Treasurer. . . .

 As noted, the Governor contends that reference in the statute to a "United Fund," "Community Chest," and "United Appeals" denotes certain entities existing in 1955. Under this reading, the statute leaves the Governor powerless to allow the BUF/NJ to participate in soliciting payroll contributions from state employees, because it reserves ...

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