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Zuckerman v. Borough of Highland Park

July 5, 2007

RICHARD P. ZUCKERMAN, PLAINTIFF-APPELLANT,
v.
BOROUGH OF HIGHLAND PARK, OFFICER ROBERT MILLS, DETECTIVE JOSEPH VASSALLO, SERGEANT FRANCIS KINNEY, JANE STANLEY, DEFENDANTS-RESPONDENTS, AND ASSISTANT PROSECUTOR WADE BAKER, AND STATE OF NEW JERSEY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-3743-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 4, 2006

Before Judges Coburn, R. B. Coleman and Gilroy.

Plaintiff Richard P. Zuckerman appeals from two orders of summary judgment dated April 19, 2005, that dismissed his complaint against the Borough of Highland Park (the Borough) and various municipal employees. One order granted judgment in favor of the Borough and defendant Jane Stanley, the Director of the Borough's Public Library. The other order granted judgment in favor of the three police officers named as defendants, Officer Robert Mills, Detective Joseph Vassallo and Sergeant Francis Kinney. Plaintiff also appeals from an earlier order dated February 6, 2004, that denied his motion for a change of venue from Middlesex County to Morris County. We affirm each of the orders.

This matter arises out of an incident that occurred on November 23, 1998. On that date, plaintiff refused to comply with a request by defendant Stanley to abide by the posted three minute time limit for use of the pay phone located in the lobby of the Library. Plaintiff refused to curtail his use of the phone and challenged Stanley to call the police, which she did. Defendants Mills and Kinney responded and, once defendant was outside with the officers, matters escalated to the point that the officers arrested plaintiff and charged him with disorderly conduct, N.J.S.A. 2C:33-2(a); obstruction of justice, N.J.S.A. 2C:29-1(a); and possession of a weapon, which eventually was downgraded to a disorderly persons offense, N.J.S.A. 2C:33-2b.

Plaintiff was tried in the New Brunswick Municipal Court, having been transferred after plaintiff filed a civil action against Highland Park. Plaintiff was found guilty of disorderly conduct and obstruction of justice, but not guilty of the weapons charge. He appealed and on the trial de novo in the Superior Court, Law Division, Middlesex County, Judge James F. Mulvihill found him guilty of the disorderly conduct charge but not guilty of the obstruction charge. Plaintiff appealed the judgment of the Law Division, and this court affirmed his conviction in an unpublished opinion, Docket No. A-82-02T2 (App. Div. March 13, 2003). The New Jersey Supreme Court subsequently denied plaintiff's petition for certification, State v. Zuckerman, 177 N.J. 492 (2003), and the United States Supreme Court denied certiorari. Zuckerman v. New Jersey, 540 U.S. 953, 124 S.Ct. 396, 157 L.Ed. 2d 287 (2003).

Although it is not clear exactly when plaintiff commenced this civil action,*fn1 he filed an amended complaint on or about April 6, 2004. In that amended complaint, plaintiff alleges, among other things, that the Highland Park Library policy restricting the pay phone use to three minutes is an unconstitutional abridgement of the freedom of speech; that the Library's failure to have a formal written policy or appeal procedure constitutes a denial of due process of law; that his arrest was retaliatory; and that the police officers involved in the arrest and subsequent trial gave false testimony.

In his letter opinion, dated April 19, 2005, Judge Nicholas J. Stroumtsos, Jr., reviewed in detail the factual background and procedural history of the action. He then reviewed and analyzed each count of plaintiff's amended complaint, concluding as to each, that summary judgment in favor of all defendants was appropriate.

Plaintiff now appeals, raising the following points for argument in his brief:

POINT I:

A PUBLIC LIBRARY PATRON HAS A PROTECTED STATE CONSTITUTIONAL RIGHT TO USE THE PUBLIC PAY TELEPHONE LONGER THAN THREE MINUTES, WHEN NOBODY ELSE IS WAITING TO USE THE PUBLIC PAY TELEPHONE; DESPITE THE PUBLIC LIBRARY'S PLACEMENT OF THE TELEPHONE DIRECTLY ACROSS FROM THE CIRCULATION DESK, WITHIN EARSHOT AND POTENTIALL [sic] DISTURBING TOWARDS LIBRARY STAFF, AND THEIR INTENDED RESTRICTED USE OF THE SAME PUBLIC PAY TELEPHONE FOR PATRONS TO CALL FOR ARRANGEMENTS TO BE PICKED UP AND DRIVEN HOME. THIS TYPEWRITTEN NOTE AFIXED [sic] TO THE WALL ABOVE THE PUBLIC PAY TELEPHONE IS NOT A VALID "POLICY" BECAUSE IT IS WRITTEN AS A REQUEST AND IS NOT INCLUDED IN THE FORMAL WRITTEN LIBRARY POLICIES, WHICH DO NOT SET OUT A PROCEDURE TO APPEAL AN ADVERSE DECISION BY A LIBRARY STAFF MEMBER. THIS IS THE ONLY TELEPHONE AVAILABLE FOR LIBRARY PATRONS.

POINT II:

A MUNICIPAL COURT CONVICTION I[S] INADMISSIBLE IN ANY CIVIL ACTION AND DOES NOT COLLATERALLY ESTOP RELITIGATION OF THE FACTS, IN A CAUSE OF ACTION FOR VIOLATION OF THE NEW JERSEY ...


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