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Warren Massey v. City of Atlantic City


March 31, 2011


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3627-07.

Per curiam.


Submitted March 16, 2011 - Decided

Before Judges Lihotz and J. N. Harris.

This appeal involves a claim of governmental interference with the opportunity of an individual to participate in the electoral process. Plaintiff Warren Massey was the unsuccessful candidate for a councilmanic seat on the governing body of defendant City of Atlantic City (the City) in November 2006. After placing second in the vote tally -- losing by only twenty-six votes -- he eventually filed a five-count amended complaint and jury demand alleging that the individual defendants and the City scuttled his candidacy by ordering City sanitation workers on the eve of the election to remove "every single sign placed up by [p]laintiff's campaign staff."

After a motion judge granted summary judgment in favor of two of the individual defendants*fn2 -- Robert Levy and Rosemary Adams -- and severely truncated Massey's liability and damage claims, a bench trial*fn3 ensued against the City only. The matter was tried before a different judge under the previously- determined limitation that Massey could recover only for the "value of the signs." At the trial's conclusion, the court dismissed the complaint, finding that Massey "failed to meet his burden" because "[the court did not] know exactly what these signs cost."

From our review of the record, we are satisfied that the motion court erred when it abridged Massey's theories of liability and the scope of his recoverable damages. Because this inevitably tarnished the subsequent bench trial, we reverse and remand for further proceedings, including the potential for an entirely new trial.



Massey's notice of appeal recites that it seeks review of only the final order entered on March 16, 2010, dismissing his complaint on the basis of a failure of proof of actual damages. However, because the thrust of his arguments touch and concern the interlocutory order dated August 28, 2009, which limited the scope of Massey's claims against the City, we treat Massey's appeal as also emanating from an order for partial summary judgment. Because of this focus, we consider the factual record in the light most favorable to Massey as the non-moving party. See Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010); Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 313 (App. Div. 2010).

Complicating our analysis is the manner in which the City's summary judgment application was presented to the Law Division. Instead of preparing and filing a fully-fledged summary judgment motion pursuant to Rule 4:46-2, the City "joined"*fn4 the companion motion for summary judgment that had been filed on behalf of the individual defendants Levy and Adams. In correspondence to Massey's attorney, the City's attorney averred that "the City relies on the brief and exhibits submitted by co-defendants Adams and Levy since the core basis for the relief in my view is identical for all three co-defendants."

Understandably perplexed by the municipal corporation's gambit, Massey responded only to the numerous arguments presented in Levy's and Adams's motion papers. He expressly, and appropriately, noted, "[i]t is most certainly unfair and prejudicial that [the City's attorney] simply moved to join in [Levy's and Adams's] [m]otion. The [p]laintiff needs something to oppose." Notwithstanding its failure to file an initial summary judgment brief and a statement of material facts, see Rule 4:46-2(a), the City nevertheless interposed a "reply to plaintiff's opposition to the pending motion[] for summary judgment." Ignoring the procedural muddle, probably because it held the view that the most important dispositive issues were indeed identical for all defendants, the Law Division heard oral argument from all parties and rendered its decision on the mostly uncontested factual background.


Our recitation of the facts mostly tracks the data that were available at the summary judgment motions, and not those generated at the later bench trial. We do this in fidelity to Massey's appellate grievance, which is primarily directed to the summary judgment motions and their sequelae. Although these facts are very similar to the facts adduced at the bench trial, there were some differences.*fn5 We start with the acknowledgment that Massey was a candidate for the third ward seat on the City Council of Atlantic City, and he lost the 2006 general election by twenty-six votes.

During the weeks preceding and leading up to Election Day 2006, campaign signs promoting Massey's candidacy were erected on public and private property. Right before the election, at the direction of Callaway -- the City's Director of Public Works -- several City employees were ordered to remove and discard Massey's campaign signs located on public property. Neither Levy nor Adams directed Callaway to confiscate the signs, and both disclaimed prior knowledge of Callaway's order. As a result of Callaway's directive, dozens of Massey's campaign signs were taken down by City employees, the loss of which reduced Massey's visibility and allegedly contributed to his election defeat.


In an effort to vindicate the rights that he considered trampled, Massey initially filed a two-count complaint against defendants contending that they had violated several election laws contained in Title Nineteen*fn6 of the New Jersey Statutes, thereby impinging upon plaintiff's "constitutionally protected right to free speech and Civil Rights." Although the first count of the complaint did not specify any particularized constitutional provisions that were violated, it asserted a breach of Massey's "right to express himself politically . . .protected by both the Constitution of the United States and the State of New Jersey." As remedies, Massey sought "compensatory damages, punitive damages, pain and suffering [damages], counsel fees and costs, . . . and such other relief as the Court or jury may deem just and appropriate." The complaint's second count did not aver an additional theory of liability; instead, it merely asserted as actual damages Massey's out of pocket loss of "his own funds with regards to the production of the campaign signs."

Several months into the litigation, Massey filed a five-count amended complaint, which repeated the initial complaint's first two counts and added a third count to include theories of liability encompassing violations of "New Jersey Laws against Trespass," nuisance, and unspecified election laws. A newly-minted fourth count expressly stated, without any specificity, that defendants' actions violated "New Jersey Civil Rights Statutes, N.J.S.A. 10:1-2 et seq." The final count echoed the first count, seeking remedies for defendants' putative violation of Massey's "rights as protected by the Constitution of the State of New Jersey."

In Massey's response to Levy's and Adams's summary judgment motion, he reasserted that defendants participated in violations of Title Nineteen, but also claimed that their conduct was "a First Amendment speech violation." Also, for the first time as far as the record discloses, Massey alleged that his civil rights were abridged by defendants' violation of "his due process of law, free speech, political free speech, and against [sic] retaliation for exercising free speech by running for office after the Democratic City Council election." As for the City's liability, without a single citation to authority for the proposition, Massey argued that "a municipality . . . can be bound by the illegal acts of the Director of Public Works who commandeers Public Works trucks and Public Works employees to tear down political campaign signs in support of a certain politician or political party."

In Levy's and Adams's reply brief, apparently content to emphasize mainly that Massey did not refute any of their material facts, they ignored the civil rights issues. The City's reply brief -- its first actual brief in support of its motion for summary judgment -- also did not address the civil rights issues, instead arguing (1) the lack of evidence of proximate cause for the loss of the election and (2) the speculative nature of Massey's claim for "lost compensation to which he might have otherwise have been entitled as a potential third ward councilman."

In resolving the motions, the court did not address any of the specific theories of liability presented by Massey, including the civil rights claims. The court expressed its agreement with the positions of Levy and Adams, holding:

The assertion by the plaintiff that because the Mayor and the Municipal Clerk have legal responsibilities attendant to their offices, they are therefore derivatively responsible for any act committed by any municipal employee is a premise that is not justified in any case law or any statutory regiment [sic] that I have been able to determine, there being no suggestion that either Mr. Levy or Miss Adams was in [any] way directly or indirectly involved in this conduct. The application by each of them for judgment dismissing the complaint against them individually is granted and an appropriate order will be entered.

Regarding the City's liability -- without reference to any statutory authority or decisional law -- the motion court held, "[i]t seems to me that the circumstances of the removal of the signs may or may not have been criminal, and if they were not criminal, it is possible that a case can be made that the City would be vicariously responsible for the conduct of its employees." However, the court limited the scope of remedies available to Massey by declaring:

With respect to the plaintiff's case, however, the City's application is granted to dismiss all claims against the City for damages other than with respect to the value as it may be established of the signs that were improperly destroyed or removed. There is no argument, there is no valid argument that would permit a jury on the facts of this case to hypothesize as to the electorial [sic] impact of the removal of specific signs and whether, indeed, that had any political effect. Phrased a different way, there's not way that a reasonable jury could conclude, as the plaintiff would need it to conclude, that the removal of the signs was a proximate cause of the infliction upon the plaintiff of any damages other than with respect to the value of the signs. Accordingly, the complaint against the City is dismissed, except as to the complaint for the value of the signs.

The motion court did not address any of Massey's specific theories of liability and was silent regarding the civil rights and constitutional issues. An order memorializing the court's decision regarding the City was entered on August 28, 2009.

Approximately six weeks later, in early October 2009, Massey filed four applications with the court styled as in limine motions: (1) seeking the recusal of the motion judge pursuant to Rule 1:18; (2) demanding the right to present the issue of punitive damages to the trier of fact; (3) requesting, pursuant to Rule 4:50-1, that the court "Revisit the Issue of the New Jersey Civil Rights Statute N.J.S.A. 10:6-1 & 2"; and (4) precluding the City from raising a municipal ordinance as a defense to its employees' conduct. Massey's brief in support of these in limine motions also asserted:

The issues involving the New Jersey State and Federal Constitution and exercise of free speech by a candidate which would use the usage [sic] of campaign signs has never been addressed by any of the parties who previously moved for summary judgment. It would be inherently unfair to reduce this matter to a property loss claim when none of the above issues have been properly addressed.

The City filed opposition to these applications, however, it has not been provided to us as part of Massey's appellate appendix. In a one-sentence, court-prepared order dated December 28, 2009, a different Law Division judge denied Massey's in limine applications, writing only the following:

Plaintiff's Motion[s] in Limine [are] DENIED, in conformance with this Court's Order dated August 28, 2009.

Massey thereupon filed a motion for reconsideration. After briefing, the court denied reconsideration, but wrote a five-page opinion explaining its rationale. Distilled to its essence, but again without addressing any of the substantive issues that Massey raised, the motion court held, "[h]ere, [p]laintiff failed to provide any new information, or any evidence which the [c]court may have overlooked or as to which the [c]court erred." A memorializing order was entered on March 16, 2010, which was the date of the bench trial.

After conducting that bench trial, the Law Division obliquely found wrongful conduct by a supervisory City employee, but dismissed Massey's complaint without providing any remedies, including nominal damages. In so doing, the court concluded that it was "Mr. [Callaway] who, at least from the evidence presented, unilaterally determined that the signs in the Third Ward would be removed." Finding that the City's sign ordinance did not authorize Callaway's self-help, the trial court was of the view that "[t]o just order the removal of signs, without even notice to Mr. Massey, I think violates due process." The court then observed that Callaway's conduct was probably not criminal, noting:

Was Mr. Callaway acting in such a criminal way that it [may be] said that his actions would rise above that of the municipality, thus eliminating any liability on the municipality? No I don't think so. I don't think it does. There was no action that was filed in municipal court or with the county prosecutor. There was nothing filed in the Election Law Commission. There was no determination that was made independent of this proceeding that his actions were criminal in any way. At best, we can determine that perhaps it was a misinterpretation of the ordinance.

Finally, the court finished, "the burden is on the plaintiff to demonstrate that obviously the wrong took place, I think that's been demonstrated, but where I have a problem is in the issue of damages." Finding Massey's evidence unpersuasive regarding the signs' cost, the court dismissed the complaint in its entirety.

Massey thereupon filed a timely motion for reconsideration, arguing that in light of the court's declaration that the City bore responsibility for Callaway's conduct, Massey should have been awarded at least nominal damages. On April 23, 2010, the court denied the motion explaining, "no new information has been proffered." This appeal followed.


Notwithstanding Massey's expression of indignation, our concern in this appeal is less upon the procedural impropriety of the City's "joining" in the individual defendants' motion for summary judgment, but more about the failure of the Law Division to address all of the points raised by Massey in defense of those motions. Despite Massey's failure to refute any of the material facts presented, he plainly raised significant legal issues and presented several theories of liability that were ignored, particularly his claims of being deprived of rights under the federal and state constitutions.

Plaintiff's appellate brief trumpets his claims under the First Amendment,*fn7 and rightfully so. The problem is that his legal arguments in the Law Division were not so tailored and fine-tuned. In addition, it is only through the appellate process that Massey has finally explicated his state law theory of liability, which is not pursuant to what he called in the amended complaint, "the New Jersey Civil Rights Statutes, N.J.S.A. 10:1-2 et seq.," but rather is pursuant to the New Jersey Civil Rights Act of 2004 (NJCRA), N.J.S.A. 10:6-1 to -2.

The City's appellate response is to repeat the mantra that it cannot be vicariously responsible for what it calls Callaway's "intentional, ultra vires (and perhaps criminal) actions." In support of its position, the City cites McDonough v. Jorda, 214 N.J. Super. 338 (App. Div. 1986) certif. denied, 110 N.J. 302 (1988) -- a case decided pursuant to the New Jersey Tort Claims Act (NJTCA), N.J.S.A. 59:1-1 to 12-3 -- and Pomykacz v. Borough of W. Wildwood, 438 F. Supp. 2d 504 (D.N.J. 2006) -- a case decided pursuant to the federal Civil Rights Act of 1871 (Section 1983), 42 U.S.C.A. § 1983. Because Massey's claims have been prosecuted under neither the NJTCA nor Section 1983, these cases are inapposite.

Starting with the First Amendment issues, we observe that typically such claims are brought under Section 1983. However, Massey's pleadings do not reference any federal statutory provisions, and he has only alleged direct violations of his constitutional rights. We note that the federal Constitution supports private causes of action, even though nothing in the document itself explicitly authorizes private remedies. Individuals who allege that their constitutional rights have been violated, may, in certain circumstances, recover damages directly under the Constitution without an implementing statute. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005, 29 L. Ed. 2d 619, 627 (1971). However, it is settled law that such actions are not permitted if "Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson v. Green, 446 U.S. 14, 18-19, 100 S. Ct. 1468, 1471, 64 L. Ed. 2d 15, 23 (1980) (citing Bivens, supra, 403 U.S. at 397, 91 S. Ct. at 2005, 29 L. Ed. 2d at 627); Molina v. Richardson, 578 F.2d 846, 853 (9th Cir.), cert. denied, 439 U.S. 1048, 99 S. Ct. 724, 58 L. Ed. 2d 707 (1978). Because a Section 1983 action was available in this case, Massey's direct constitutional claims were properly dismissed.

Notwithstanding the foregoing, Massey also sought remedies pursuant to the NJCRA. In relevant part, this statute provides:

c. Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. The penalty provided in subsection

e. of this section shall be applicable to a violation of this subsection.

d. An action brought pursuant to this act may be filed in Superior Court. Upon application of any party, a jury trial shall be directed. [N.J.S.A. 10:6-2.]

Thus, even if Massey's direct First Amendment claims are barred by federal jurisprudence, our State Legislature, through the NJCRA, has provided a potential means to vindicate deprivations of rights that emanate from federal (and if pled, state*fn8 constitutional law.

Treating Massey's contentions indulgently in the milieu of summary judgment, we have no hesitation in concluding that there was no proffered basis upon which the NJCRA-based civil rights claims could have been dismissed at that time. In so concluding, we do not determine the merits of those claims; we do not decide whether they could be proven to the satisfaction of a trier of fact; we do not address the question of what defenses are available to the City; and we do not parse thebreadth of available damages.*fn9 Nor do we consider whether, under the NJCRA, the City may be held liable derivatively for the misdeeds of one of its employees. Cf. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 636 (1978) (holding that Section 1983 liability cannot attach to a municipality for a deprivation of a federal constitutional right by application of the doctrine of respondeat superior); Schneider v. Simonini, 163 N.J. 336, 370-71 (2000) (same).

Although we recognize that Massey's bench trial did not convince the trial court of the quality of his actual damages, we are struck by the unduly narrow corridor of permissible damages that were permitted to be demonstrated, and suggest that if liability can be established against the City on remand, even in the presence of inartful or incomplete proof of actual damages, the Law Division should consider the award of nominal damages or explain why it declines to award them.

As for Massey's other contentions, we harbor the same concerns as the motion court concerning the speculative nature of Massey's proximate cause proofs and emoluments-of-office damages,*fn10 but we recognize that the Law Division never analyzed Massey's proofs through the lens of the NJCRA. We cannot say, without a further development of the parties' arguments, that these proofs were so one-sided that the City was entitled to a judgment as a matter of law for purposes of the NJCRA. On remand, the Law Division should be given the opportunity to express its views on the subject.


In summary, we hold that the Law Division erred in dismissing Massey's NJCRA-based claims (count four), as well as any claims that are alleged to arise directly from the New Jersey Constitution (count five). All of Massey's other causes of action were properly dismissed, as there were no disputed facts as to them, and liability based upon theories of nuisance, trespass, and criminal violation of election laws was nonexistent.*fn11 Because the Law Division failed to articulate its reasons for dismissing counts four and five, we shall permit (but not require) the City to move for summary judgment on those counts, to thereby facilitate the Law Division's consideration of the issues we have identified, together with any others that the parties properly bring to the court's attention.

The judgment is vacated, and the matter is reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

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