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Communications Workers of America AFL-CIO, v. Whitman

November 30, 2000

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, AND BARBARA WELLS, ANITA MCNUTT, LAURA A. REED, RONALD NUEL, JAMES AROSE, VICTORIA MAKRANSKY, ROSE DELVECCHIO, ANN LAURINO, MICHELE HOANG, MARYJANE QUITTN, SUZANNE B. STARTS, MARIE D. IRWIN, RITA LAMBERT, EDWARD WORTMAN, CHRISTINE SANTIAGO, ELAINE LAMBERT, LOURDES FUENTES, ANN KELLY, SHARON CONA, JEAN KNOX, GERTRUDE WHITE, BEVERLY MCMURRAY, APRIL S. KRATZ, ANN M. ALLEN, SUE COCCIA, KARIN P. LINCOLN, SABRINA MELVIN, DONNA M. FRANCESCHINI, NORMA J. RUPLE, DAWN R. TORNEY, DONNA M. MONFORTE, MIKELLE BRISCOE, OLGA ITHIER, CHARLES V. KLINGBERG, NANCY GOMEZ, PATRICIA F. PFEFFERLE, PATRICIA E. MILOSZEWSKI, BERTHA M. HAGEN, MELANIE A. BAKER, KIMBERLY J. SMITH, JOANN LUZZI, MARGARET L. FOX, ANDREA A. MCGANN, MARYLOU WILSON, JANET SCHILLING, MICHELE A. HALDEMAN, JOAN R. CHAPMAN, GAIL S. BROCKWAY, ELIZABETH A. FEASLER, JOAN E. THOMAS, KELLY L. BLANKLEY, MICHELE M. HUMBRECHT, WALDEEN TOOMER, GARY A. SIMPERS, THERESA M. MADOSKY, DALE J. PORTER, EDNA M. PARCELS, CATHLEEN C. YATES, PATRICIA H. CALLAND, DOROTHY J. SMITH, MARIA T. DENSTEN, ROBERT H. IEZZI, MYRTLE M. GRAY, LENORA GREEN, SARAH A. TREMBECK, PATRICIA R. BRIANT, ROSEANN BARTLING, SHEILA ALEXANDER, MARIE DARPA-HOPKINS, CARMELA GALLINA, CATHERINE LOUGHMAN, CLAIRE STITES, IRENE JOHNSON, JEANNE CHEESMAN, CARIDAD GALEA, MELINDA JEFFERSON, GLORIA REBOVICH, PAULA RUELA, GINA TORALES, TONI ECKHARDT, LORETTA BAILEY, MONIQUE BERRY, ANITA DAVEY, SHELLY DIXON, MARTHA ENRIQUEZ, CLARA JONES, KATHERINE JONES, FRAN LOCKETT, KEISHA TAYLOR, CONSTANCE GORDON, SUSAN HAIGHT, BARBARA HAWKINS, RITA HERMANNS, DOLORES NICHOLAS, ROBERTA NICHOLAS, GLORIA QUINN, MICHELLE BATTLE-WEST, PAIGE CLEMONS, LILLIAN DELOACH, SALIHAH MUHAMMAD, EVELYN RIVERA, CYNTHIA TANN, TAMESHONE WILLIAMS, PAMELA WRIGHT, KATHLEEN GARRIGAN, MARY GARRIS, JOANN KEENAN-LARICK, KELLY VAN HISE, TAMMY VEALEY, EDITH BAEZ, DAISY CAPOTE, MARGARET FARLEY, ROSEANN GIBBS, MARITZA GONZALEZ, OLGA LINARES, SONIA NOEL, WANDA RODRIGUEZ, DELMA RODRIGUEZ, JUSTINA SUERO, DEYANNA BAIRD, DOROTHY BRASMER, DELORES COSGROVE, HELEN LEON, PRISCILLA LEUCK, ANGELA MASSARO, DONNA MILLER, MYRIAM MUINA, DIEDRE VANDUNK, DEBORAH BECOTE, VALRIE HENRY, ELBA SUAREZ, FLOR TORRES, KATHLEEN GROOME, JACQUELINE HOWARD, NANCY LAMSON, EVONNE LONG, DOLORES MARANILLI, GWENDOLYNN ROSS, DIANA WISE, SHEILA ARMSTRONG, GERTRUDE BROOKS, PATRICIA DITULLIO, RUTH EFRUS, ELIZABETH FERGUSON, MERYL HAYS, GLADYS JENNINGS, EMILY RENZULLO, TALIANA WOODBRIDGE, CHARLENE BOOTH, VIOLA BOYKINS, DIANE CANGAELOSI, LIDIA CROCCO, SUSAN FULLER, DIANE GROTZ, DAU THI HOANG, RONA HOLMES, SUREE SAEJIA, DOROTHY TALAMINI, PRIOR SCHLENDORF, SHIRLEY CALDWELL, MARYLOU CAMMISA, ARTHERIA DAVIS, EUGENE FARRELL, ESTHER FRAZIER, THOMAS HUREY, DORIS KANTER, BEVERLY NATOLI, ANNE REID, CONSTANCE RIZZO, KAREN SCELZA AND CYNTHIA WILLIAMSON, PLAINTIFFS-APPELLANTS,
v.
CHRISTINE TODD WHITMAN, GOVERNOR OF THE STATE OF NEW JERSEY, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, DEBORAH PORITZ, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, AND C. RICHARD KAMIN, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
DEFENDANTS-RESPONDENTS.



Before Judges Stern, Kestin and Wefing.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 17, 2000

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County.

This matter is before us a second time. In our earlier opinion in Communication Workers of America v. Whitman, 298 N.J. Super. 162 (App. Div. 1997) (Communication Workers I), we affirmed the trial court's order dismissing the complaint as to all claims except those of the individual plaintiffs based upon the First Amendment of the United States Constitution as extended in Board of County Comm'rs, Wabaunsee County v. Umbehr, 518 U.S. 668, 116 S. Ct. 2342, 135 L. Ed. 2d 843 (1996), and O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 116 S. Ct. 2353, 135 L. Ed. 2d 874 (1996). We remanded for a consideration of the remaining issues.

Such background facts as are required to understand the matter were recited in our earlier opinion:

The plaintiffs in this case are the Communications Workers of America, AFL-CIO, and individual members of that union who were formerly State employees at certain State-operated Motor Vehicle (MV) agencies which were re-privatized in 1995 by an executive order of reorganization issued pursuant to N.J.S.A. 52:14C-1, -11. This followed a nine year period when twenty- five agencies were being operated directly by the Division of Motor Vehicles.

Since 1986, efficiency of direct State operation has been explored, using a hybrid system in which about half the Motor Vehicle agencies remained private and half were operated by the State. The new plan again privatizes the local agencies that the DMV had been operating, with the Director continuing to appoint private Motor Vehicle agents as independent contractors under N.J.S.A. 39:3-3. This statute, which provides authority for the Director's appointment and removal at will of Motor Vehicle agents, has remained unchanged in its essence since 1921. See In re Fitzgerald, 188 N.J. Super. 476 (App. Div. 1983).

Public bidding has never been employed by DMV directors when exercising the appointment power conferred under N.J.S.A. 39:3-3. [Communications Workers I, supra, 298 N.J. Super. at 165-66.]

When the matter was considered by the trial court on remand, a qualified immunity issue was also raised and adjudicated. The individual plaintiffs now appeal from the trial court's dismissal of their First Amendment claims and its determination that defendants are immune from suit as individuals.

Judge Shuster framed the issues before him on remand, noting as we had that the decisional principle of Horn v. Kean, 796 F.2d 668 (3d Cir. 1986)--on which we perceived Judge Carchman had previously relied in reaching the trial court result which generated the earlier appeal--had been effectively overruled in Umbehr and O'Hare. Previously, according to the court in Horn, "the First Amendment protections afforded to public employees [from removal for political reasons] under Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980) were not applicable to the New Jersey [motor vehicle] agents[,]" Communications Workers I, supra, 298 N.J. Super. at 167, because "under New Jersey decisional law [they were] independent contractors rather than public employees[.]" Ibid. Judge Shuster accurately characterized Umbehr and O'Hare as holding "that independent contractors were [also] entitled to protection from termination of their contracts as a result of the exercise of the First Amendment freedom of political affiliation." *fn1

Judge Shuster then framed the qualified immunity issue, see Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), as whether defendants' good faith compliance with law existing at the time of the conduct complained of, i.e., before the decisions in Umbehr and O'Hare, insulated them from liability:

Defendants move for dismissal of the remaining First Amendment-based claim because they argue that 1) qualified immunity shields them personally from civil liability; 2) as public officials being sued in their "official capacities," defendants are not "persons" within the meaning of a 42 U.S.C. § 1983 action; 3) plaintiffs have not set forth facts alleging the defendants' violation of current applicable laws; and 4) injunctive relief sought in the form of reversing the DMV's privatization would be violative of the separation of powers doctrine, judicially unfeasible, and plainly unjustified since defendants' privatization scheme is not presently in violation of law.

Plaintiffs argue that, on the contrary, based on the case law, defendants are not entitled to personal immunity for their First Amendment freedom of association violations. Plaintiffs also contend that defendants are "persons" within the meaning of 42 U.S.C. ยง 1983 and thus may be sued in their official capacities. Further, they contend that the issues presented are not moot because matters of continuing public importance are ...


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