United States District Court, D. New Jersey
MATTER comes before the Court on the parties'
competing motions for summary judgment. The Court declined to
hear oral argument pursuant to Rule 78 of the Federal Rules
of Civil Procedure and, for the reasons set forth below,
denies Plaintiff's motion and grants Defendants'
case arises out of what may charitably be described as a
fraught relationship between Plaintiff, a former Councilwoman
for the Borough of Mount Arlington, and her counterparts in
governance, the Council and Mayor, during Plaintiff's
tenure on the Council. Plaintiff is a resident of the Borough
of Mount Arlington who developed an interest in local
politics-an interest that led her first to join the Concerned
Active Residents of Mount Arlington (CARMA) and then to run
successfully for a seat on the Council. (Def. Statement of
Facts, ECF No. 35-2, Pl. Resp. to Def. Statement of Facts,
ECF No. 40, ¶¶ 1-3, 8, 11-25.) Plaintiff assumed
her seat in 2011 and, soon thereafter, certain points of
contention developed among the parties, including whether
Plaintiff improperly discussed confidential law enforcement
contract negotiations with her husband, id.
¶¶ 28-41, and whether Plaintiff improperly applied
to positions within the Borough while holding her position on
the Council. (Pl. Statement of Facts, ECF No. 36-4, Def.
Resp. to Pl. Statement of Facts, ECF No. 39-2, ¶¶
11-12.) In addition, from late 2013 through 2014, Plaintiff
took issue with Defendants' conduct and made the
following allegations of wrongdoing to the Morris County
Prosecutor's Office (MCPO): Defendants discussed public
session issues during closed executive sessions; the Mayor
violated the Mount Arlington sign ordinance with respect to
posting campaign signs; Defendants attended a public hearing
in a neighboring town. (Def. Statement of Facts, ECF No.
35-2, Pl. Resp. to Def. Statement of Facts, ECF No. 40,
¶¶ 42-43, 46-48, 54, 57.) While the parties dispute
the finer details of the complaints, bases therefor, and
investigations undertaken by authorities, no charges or
penalties resulted from the allegations. (Id.,
¶¶ 44, 48-51, 55, 58, 64-66.)
with meetings held in August and November of 2014,
id., ¶¶ 60, 68, Defendants on December 16
issued Resolution No. 2014-151, “A Resolution of
Censure of Council Member Paula Danchuk by the Mayor and
Council of the Borough of Mount Arlington, in the County of
Morris, State of New Jersey” (the Censure). (Def.
Motion, Ex. B., Censure, ECF No. 35-5; Pl. Motion, Ex. A,
Censure, ECF No. 36-5.) The Censure provided that Defendants
chose to censure Plaintiff “in lieu of filing a
Complaint with the Local Finance Board for allegations of
violations of the Local Government Ethics Law in order to
avoid the expense of expending additional Borough funds; to
cease the perpetuation of the discussion of these issues; and
to memorialize the issues taken with Council Member Paula
Danchuk.” (Id., at 1.) The Censure offered a
litany of Plaintiff's alleged misdeeds including,
inter alia: applying for positions with the Borough
while holding office and approaching the Borough Attorney for
personal legal advice regarding the same; disclosing
confidential information in connection with law enforcement
contract negotiations; filing unsubstantiated complaints with
the MCPO without notice to Defendants and thereby causing the
Borough to incur expenses in defense and investigation;
“[r]etaliating against the Borough by contacting the
press to accuse the Borough Mayor and Council of
‘bullying'” in their filing of an ethics
complaint (which was later withdrawn); discussing private
Borough matters publicly and corresponding with the public on
such matters so as to make communications discoverable; and
“perpetuat[ing] [CARMA's] allegations that the
Borough does not act in a transparent nature.”
(Id., at 1-3.) The Censure concluded:
WHEREAS, the Mayor and Council of the Borough of Mount
Arlington have on numerous occasions requested that Council
Member Paula Danchuk refrain from secretive behavior; filing
unnecessary complaints without discussing her personal
beliefs with the entire council; causing the Borough to
defend and prosecute issues that should have been discussed
at the council meeting; cease from behavior unbecoming of a
Council Member; and to work with the Mayor and Council in a
professional manner; and
WHEREAS, Council Member Paula Danchuk has refused these
repeated requests; continues to behave in a manner
detrimental to the Borough; and frustrates the process of the
council meetings; and
NOW, THEREFORE BE IT RESOLVED, that Council Member Paula
Danchuk is hereby censured for her behavior[.]
(Id., at 4.)
January 28, 2015, Plaintiff filed suit alleging that the
Censure was passed over her objections without legally
sufficient notice, “publicly malign[s] her character[,
]” and is “rife with false allegations[.]”
(Compl., ECF No. 1-1, ¶¶ 6-17.) Plaintiff alleges
that the Censure violates her federal and state due process
rights, is void as overbroad and vague, is unenforceable as
preempted, violates her federal and state rights to free
speech, is arbitrary and capricious, and is null for want of
adequate notice. (Id., Counts I-VII, ¶¶
18-49; Def. Statement of Facts, ECF No. 35-2, Pl. Resp. to
Def. Statement of Facts, ECF No. 40, ¶ 4.) As to each
claim, Plaintiff asks this Court to vacate the Censure with
prejudice and award attorneys' fees and costs.
(Id.) Defendants generally argue that these claims
are not cognizable in the context of a censure, the parties
respectively maintain that summary judgment should be entered
in their favor, and the Court addresses these claims and
arguments in turn.
judgment is appropriate under Fed.R.Civ.P. 56(c) when the
moving party demonstrates that there is no genuine issue of
material fact and the evidence establishes the moving
party's entitlement to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A factual dispute is genuine if a reasonable jury
could return a verdict for the non-movant, and it is material
if, under the substantive law, it would affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in
his favor.'” Marino v. Indus. Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,
477 U.S. at 255).
the moving party has the burden of proof at trial, that party
must show affirmatively the absence of a genuine issue of
material fact: it must show that, on all the essential
elements of its case on which it bears the burden of proof at
trial, no reasonable jury could find for the non-moving
party.” In re Bressman, 327 F.3d 229, 238 (3d
Cir. 2003) (quoting United States v. Four Parcels of Real
Prop., 941 F.2d 1428, 1438 (11th Cir. 1991)).
“[W]ith respect to an issue on which the nonmoving
party bears the burden of proof [. . .] the burden on the
moving party may be discharged by ‘showing'-that
is, pointing out to the district court-that there is an
absence of evidence to support the nonmoving party's
case.” Celotex, 477 U.S. at 325.
party opposing the motion for summary judgment cannot rest on
mere allegations and instead must present actual evidence
that creates a genuine issue as to a material fact for trial.
Anderson, 477 U.S. at 248; Siegel Transfer, Inc.
v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir.
1995). “[U]nsupported allegations [. . .] and pleadings
are insufficient to repel summary judgment.” Schoch
v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.
1990); see also Fed.R.Civ.P. 56(e) (requiring the
nonmoving party to “set out specific facts showing a
genuine issue for trial”). “A nonmoving party has
created a genuine issue of material fact if it has provided
sufficient evidence to allow a jury to find in its favor at
trial.” Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001).
parties agree that summary judgment is appropriate, and
likewise agree that the Court should focus its inquiry on the
text of the Censure. (Pl. Motion, ECF No. 36-1, at 22-24;
Def. Motion, ECF No. 35-1, at 8-14.) In addition to the
Censure itself, the parties obtained discovery from the
principal actors in this matter, including Plaintiff, her
husband, a member of CARMA, a law enforcement officer, and a
Councilmember. See ECF Nos. 35-36. While the parties
disagree as to whether their grievances with each other were
justified, such facts are immaterial because the parties
agree as to the terms of the Censure and, as discussed below,
the Censure does not give rise to cognizable claims.
Federal and State Due ...