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William G. Mulligan Foundation for Control of First Aid Squadders v. Brooks

June 25, 1998

WILLIAM G. MULLIGAN FOUNDATION FOR THE CONTROL OF FIRST AID SQUADDERS AND ROVING PARAMEDICS, A NEW JERSEY NONPROFIT CORPORATION, PLAINTIFF-APPELLANT,
v.
THOMAS S. BROOKS, KEVIN M. HAHN, SHARON L. FREEMAN, WILLIAM HERPICH, EDWARD NIEDZINSKI, SCOTT M. MINTER, LOUIS P. BONA, ART HORNUNG, AND FRANK J. VANORE, INDIVIDUALLY AND AS TRUSTEES ON THE BOARD OF TRUSTEES OF THE PANTHER VALLEY PROPERTY OWNERS ASSOCIATION, DEFENDANTS-RESPONDENTS.



Before Judges Stern, Kleiner and Kimmelman.

The opinion of the court was delivered by: Stern, J.A.D.

[9]    Argued February 24, 1998

On appeal from the Superior Court of New Jersey, Law Division, Warren County.

Plaintiff appeals from the grant of summary judgment dismissing its complaint seeking to compel defendants, the trustees of the Panther Valley Property Owners Association (PVPOA), to publish plaintiff's advertisement in defendants' newsletter, The Panther. Plaintiff claims that defendants violated its right of free speech guaranteed under the New Jersey Constitution by refusing to accept its advertisement for publication. Plaintiff also claims that defendant owed plaintiff's founder and trustee, Elinor Mulligan, a fiduciary duty to publish the advertisement.

I.

The essential facts are not in dispute. Because of the nature of defendants' summary judgment motion, *fn1 plaintiff is entitled to "all the favorable inferences," Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995), and we adopt for present purposes its version of the facts:

Panther Valley is a private, gated community of some 1,200 individual households and a population of some 4,000 persons. It covers approximately 1,500 acres in Allamuchy Township in Warren County. All Panther Valley property owners are members of the Panther Valley Property Owners Association (PVPOA), which is governed by a 9-member Board of Trustees elected by the members.

For many years, the PVPOA has published a monthly newsletter called The Panther, which identifies itself as "The Official Communication Medium of the Panther Valley Community." The Panther "serves as a community bulletin board and is mailed free of charge to Panther Valley residents," and has no other distribution. Since PVPOA rules and regulations forbid "soliciting of any kind within Panther Valley", The Panther is the only effective means of communication among all residents of the community.

The only written guidelines governing publication of materials in The Panther are guidelines for letters to "The Mailbox", instituted in mid-1996, which are actually "letters to the editors". Those letters are subject to numerous restrictions including no more than 250 words; they must be signed using full name, address and phone number; the Communications Committee will select letters for publication; and selection will be based upon "relevance, timeliness and constructiveness."

The Panther accepts paid advertising and has a rate chart for such ads. There are no regulations or guidelines governing the content of advertising. Publication of The Panther is supervised by an editor and Communications Committee appointed by and answerable to the Board of Trustees, with the assistance of a professional staff member employed by the PVPOA.

Elinor Mulligan is a resident of Panther Valley, and has been since 1972, and is a member in good standing of the PVPOA. She happens to be an attorney, and her law firm regularly advertises in The Panther. Ms. Mulligan is also the founder and incorporator of the William G. Mulligan Foundation for the Control of First Aid Squadders and Roving Paramedics (Plaintiff and hereinafter "Mulligan Foundation") of which she serves as one of the three trustees. The Foundation was organized for certain stated purposes including the promotion and advancement of public knowledge of the rights and privileges granted by law to volunteer first aid and rescue squads and their members and to salaried paramedics. As a consequence of an unfortunate incident in 1991 following the death of Ms. Mulligan's husband, Ms. Mulligan had filed suit against the Allamuchy-Green First Aid Squad (hereinafter "AGFAS") and the paramedics the squad called to Ms. Mulligan's home at that time. The lawsuit was an effort to clarify the legal rights and obligations of such persons. The case was entitled Mulligan v. Allamuchy-Green First Aid Squad, et al.. The summary judgment granted all defendants by the Superior Court confirming the extensive immunity of first aid squads and their members under New Jersey law was then affirmed by the Appellate Division in an unreported (App. Div. A-6801-94T1) and certification was denied.

The Panther regularly prints materials favorable to the AGFAS urging PVPOA members to join and contribute to the squad and to call upon it for services. And, the June 1996 issue of The Panther contained an article under the heading "Good Judgment" which favorably reported that the dismissal of Ms. Mulligan's suit against the AGFAS had been upheld by the Appellate Division. All of these materials including the aforedescribed article were printed in The Panther without any charge to AGFAS.

On January 15, 1997, on behalf of the Mulligan Foundation, Ms. Mulligan submitted an advertisement to be placed in the February issue of The Panther explaining the legal rights and privileges of first aid squads such as the AGFAS and of salaried paramedics which had been confirmed by the state courts as a result of the Mulligan case. The submission used the same "True-False" format of some of the AGFAS published submissions and was accompanied by a check in full payment for the ad.

By telephone on January 17, confirmed by a letter dated January 17 from defendant Scott Minter, as chairman of the PVPOA Communications Committee, Ms. Mulligan was informed that her ad had been rejected for publication. The ground[s] stated for rejection was that "it appears to be more of an editorial than an advertisement." A subsequent letter dated February 10, also signed by Mr. Minter, stated that "it would be more appropriate to print your copy in the `Mailbox' column as an editorial piece," but went on to say that such a submission would have to be substantially edited to eliminate certain "negative comments". Mr. Minter further advised Ms. Mulligan that any submission to the "Mailbox" would have to be of a "constructive nature" which he explained meant "it does not contain negative or pejorative statements or allusions about individuals, provides suggested solutions for perceived problems, ...


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