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ARONS v. DONOVAN

March 29, 1995

MARILYN ARONS, Plaintiff,
v.
KATHLEEN A. DONOVAN, COUNTY CLERK OF BERGEN COUNTY, et al., Defendants.



The opinion of the court was delivered by: JOHN C. LIFLAND

 LIFLAND, District Judge

 Presently before the Court are defendants' motions to dismiss the Complaint for mootness, for failure to state a cause of action pursuant to Fed. R. Civ. P. 12(b)(6), and for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff, appearing pro se, has cross-moved for summary judgment. For the reasons set forth below, the Court will: deny defendants' motion to dismiss the Complaint as moot; grant in part and deny in part defendants' motion to dismiss the Complaint for failure to state a cause of action; decline to exercise supplemental jurisdiction over plaintiff's state law claims; grant defendants' motion for summary judgment as to plaintiff's constitutional claims; and deny plaintiff's cross-motion for summary judgment.

 BACKGROUND

 Plaintiff, an activist and advocate for special education-related issues, was an unsuccessful independent candidate for Governor of New Jersey in 1993. Defendant New Jersey Public Broadcasting Authority ("Authority") is a state agency. *fn1" On October 12, 1993, plaintiff brought an action against Bergen County Clerk Kathleen Donovan and the New Jersey Election Law Enforcement Commission ("ELEC"). Her initial Complaint alleged that she was harmed by the failure of the New Jersey County Clerks to send "gubernatorial statements" to absentee voters. Her Complaint further alleged that she suffered discrimination due to her limited access to the media, and an allegedly inequitable allocation of state gubernatorial campaign funds. Plaintiff specifically sought to have the Court enjoin the gubernatorial election for one month; direct ELEC to declare her a "qualified" candidate *fn2" and release $ 20,000 to her campaign; and direct the scheduling of two televised debates involving independent candidates as well as the Democratic and Republican candidates.

 By Order filed on October 21, 1993, the Court denied all relief, and gave plaintiff leave to amend her Complaint.

 Plaintiff filed an Amended Complaint naming as defendants the Authority, the State of New Jersey and the remaining New Jersey County Clerks. The Amended Complaint sought to have the Court compel the Authority to

 
promote actual discussion of the issues by plaintiff, as well as any other interested independent candidate, or in the alternative, a dollar award as a result of the damages to plaintiff as a result of defendants' failure to promote full discussion of the issues.

 Amended Complaint, p. 1.

 Plaintiff also sought to have the Authority "maintain balance, fairness and equity in her campaign"; to have the Court issue an Order requiring ELEC to schedule "interactive" debates in which plaintiff could participate; and to have the Court issue an Order delaying the election on the grounds that a number of absentee voters did not receive her 500-word "gubernatorial statement". Amended Complaint.

 Plaintiff contends that she was the victim of a "news blackout." She claims that after she filed as an independent candidate for Governor in April 1993, she sent press releases and news letters to various media outlets, including the Authority. Plaintiff claims that despite these mailings, and despite what she characterizes as a high-profile career as a public advocate, she received inadequate coverage from the Authority.

 On November 1, 1993 plaintiff again moved for a preliminary injunction to postpone the election due to the failure of the County Clerks to mail her 500-word "gubernatorial statement" along with absentee ballots. Judge Debevoise denied the application.

 In February and March 1994, plaintiff withdrew all claims against the County Clerks and ELEC. The portions of the Complaint that apply to the Authority concern the breadth and fairness of the Authority's overall campaign coverage, and the Authority's alleged failure to cover plaintiff's campaign. The Complaint seems to allege that the Authority's failure to adequately cover plaintiff's campaign violated N.J.S.A. 19:44A-39 (Section 14 of the 1974 "Act to amend and supplement 'The New Jersey Campaign Contributions and Expenditure Reporting Act'"), N.J.S.A. 48:23-7(h) (Section 7 of the "New Jersey Public Broadcasting Authority Act"), 47 U.S.C. § 315 and the First and Fourteenth Amendments to the United States Constitution. Additionally, the Complaint seems to allege that the Authority was legally obligated to cover plaintiff's campaign in a fair, balanced and nonpartisan manner; that by offering plaintiff an insufficient amount of media exposure, the Authority violated her First Amendment rights; and that since the Authority is a state agency, its actions are attributable to the state and subject to the Fourteenth Amendment's equal protection guarantees.

 In her Amended Complaint, plaintiff seeks the following relief: an order compelling the Authority "to promote actual discussion of the issues by plaintiff as well as by any other interested candidate"; an order compelling the Authority to "maintain balance fairness and equity" in its coverage of plaintiff's campaign; an order designating plaintiff a "qualified candidate"; an order enabling plaintiff to participate in at least one interactive gubernatorial debate; and an end to the what plaintiff characterizes as a state-imposed "news blackout" directed against plaintiff's candidacy.

 DISCUSSION

 1. Mootness

 Defendants move to dismiss the Complaint on the ground of mootness. Defendants argue that because plaintiff seeks injunctive relief regarding an election that has passed, her claims are now merely "abstract questions" which the Court should not decide. Defendants note the Supreme Court's holding that "federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed. 2d 413, 92 S. Ct. 402 (1971).

 The Court disagrees with defendants' contention. The issues in the instant case are not moot merely because the election that gave rise to the request for injunctive relief is over. In Johnson v. Federal Communications Commission, 264 U.S. App. D.C. 372, 829 F.2d 157 (D.C.Cir. 1987), minority presidential and vice-presidential candidates brought an action seeking an order that would prohibit the televising of a debate from which they were excluded. In July, 1984, plaintiffs had written a series of letters to the League of Women Voters, the three major private networks, and the Public Broadcasting System, requesting inclusion in the League of Women Voters' presidential and vice-presidential debates scheduled for that fall. In August, 1984, plaintiffs filed a complaint against the networks, the Democratic and Republican National Committees, the major party candidates, and the League, alleging upcoming violations of the Communications Act, 47 U.S.C. §§ 151-611 (1982), and the First Amendment. After the Commission denied the Complaint, plaintiffs petitioned the District Court for review.

 The district court held that even though the election was over, the case was not moot.

 
The issues properly presented, and their effects on minor party candidacies, will persist in future elections, and within a time frame too short to allow resolution through litigation. This is, therefore, a case where the controversy is 'capable of repetition, yet evading review,' . . . . and as such may be decided now.

 Id. at 159 n.7 (Citations omitted)

 In Moore v. Ogilvie, 394 U.S. 814, 23 L. Ed. 2d 1, 89 S. Ct. 1493 (1969), the Supreme Court addressed the constitutionality of an Illinois statute requiring that a petition to nominate candidates for general election for a new party be signed by a certain number of qualified voters. In holding that the statute violated the due process and equal protection clauses of the Fourteenth Amendment, the Supreme Court rejected defendants' claim that the issue was moot.

 
While the 1968 election is over, the burden . . . allowed to be placed on the nomination of candidates for statewide office remains and controls future elections . . . the problem is therefore 'capable of repetition yet evading review.' (citation omitted) The need for its resolution thus reflects a continuing controversy.

 Id. at 816.

 The issue of public television's coverage of gubernatorial campaigns is likely to re-emerge in future electoral seasons. Since this issue reflects a continuing controversy, defendants' motion to dismiss the Complaint as moot is denied.

 2. Failure to State a Claim

 Defendants argue that they are entitled to "summary judgment" due to plaintiff's failure to state a claim upon which relief can be granted. Defendants misstate the relief they seek; they are here asking for relief pursuant to Fed. R. Civ. P. 12(b)(6), not summary judgment, and the Court will treat this portion of their argument as a 12(b)(6) motion.

 A complaint should not be dismissed for failure to state a claim unless plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Where, as here, the action derives from a pro se civil rights complaint, a court must not dismiss the action unless it appears beyond a clear doubt that plaintiff can prove no ...


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