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State v. Burkert

Supreme Court of New Jersey

December 19, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
WILLIAM BURKERT, Defendant-Respondent.

          Argued September 11, 2017

         On certification to the Superior Court, Appellate Division, whose opinion is reported at 444 N.J.Super. 591 (App. Div. 2016).

          Sarah Lichter, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Sarah Lichter, of counsel and on the briefs).

          Steven J. Kaflowitz argued the cause for respondent (Caruso Smith Picini, attorneys; Steven J. Kaflowitz on the briefs and Timothy R. Smith, of counsel and on the briefs).

          Edward L. Barocas argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, and Rutgers Constitutional Rights Clinic Center for Law & Justice, attorneys; Edward L. Barocas, Jeanne M. LoCicero, Alexander R. Shalom, and Ronald K. Chen, of counsel and on the brief).

          J. Gregory Crane and Eugene Volokh of the California bar, admitted pro hac vice, submitted briefs on behalf of amicus curiae Pennsylvania Center for the First Amendment (Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, attorneys; J. Gregory Crane and Eugene Volokh, on the briefs).

          ALBIN, J., writing for the Court.

         This case tests the limits to which a broadly worded harassment statute, N.J.S. A. 2C:33-4(c), can criminalize speech.

         William Burkert and Gerald Halton were corrections officers, who held positions in different unions representing distinct classes of officers. Their relationship became particularly strained after Burkert read online comments attributed to Halton's wife that Burkert felt insulted him and his family. Angered by the insulting online comments, Burkert retaliated. Burkert downloaded the Haltons' wedding photograph. He then copied the photograph and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom.

         Halton testified that on January 8, 2011, he arrived at the employee garage of the Union County Jail and saw papers "blowing all over the place." He picked one up and discovered Flyer #1. The next day, when Halton arrived at work, a sergeant handed him Flyer #2, which the sergeant had found in the area of the officers' locker room. Halton identified the handwriting on both flyers as Burkert's. On January 11, while Halton was engaged in union negotiations, a lieutenant handed him Flyer #2, stating, "This came out the other night." Halton indicated that he "was a mess in negotiations, " went home, and never returned to work. Halton explained that he felt embarrassed and concerned for his safety and received psychological counseling and treatment.

         Ten months after the January incidents, Halton filed criminal harassment charges against Burkert. Halton stated that he filed the charges only because the county had failed to properly discipline Burkert. He also filed a civil lawsuit against Burkert. During the county's investigation into the flyers, Burkert admitted that he had prepared the flyers but denied circulating them. Burkert explained that he expressed himself through the flyers rather than "get physical with the guy." Burkert retired as a corrections officer in September 2012.

         The municipal court entered a guilty verdict against Burkert for harassing Halton on January 8 and 11 in violation of N.J.S.A. 2C:33-4(c). The court found that Burkert made and circulated the flyers in the garage and locker room, that the bubble dialogue inscribed on the Haltons' wedding photograph was "lewd and obnoxious, " and that such language would "seriously annoy any person, in this case Mr. Halton." In a de novo trial before the Law Division, the court found Burkert guilty beyond a reasonable doubt of committing acts of harassment.

         A panel of the Appellate Division reversed Burkert's conviction, concluding that "the commentary [Burkert] added to [Halton's] wedding photograph was constitutionally protected speech." 444 N.J.Super. 591, 594 (App. Div. 2016). The panel accepted the argument that "the altered photograph. . . was not directed to [Halton], " but rather to an audience of possibly willing listeners-other corrections officers. Id. at 601-02. The panel determined that the evidence did not support a finding that the flyers "were a direct attempt to alarm or seriously annoy" Halton or to invade his privacy rights. Id. at 601. The panel also found that the vulgar commentary on the flyers did not constitute criminal harassment. Id. at 603.

         The Court granted the State's petition for certification. 227 N.J. 377 (2016).

         HELD: To ensure that N.J.S.A. 2C:33-4(c) does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to "alarm" and "seriously annoy" must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person's reasonable expectation of privacy.

         1. N.J.S.A. 2C:33-4 distinguishes between "communications" and "language" that violate the statute in subsection (a), and "conduct" and "acts" that do so in subsection (c). Although a "course of alarming conduct" or "repeatedly committed acts" can occur through communications and language alone, it is far from clear that the Legislature had in mind offensive speech as the object of N.J.S.A. 2C:33-4(c). That the primary thrust of N.J.S.A. 2C:33-4(c) is not to interdict speech, but rather conduct, is reinforced in State v. Hoffman. 149 N.J. 564 (1997). (pp. 15-21)

         2. Criminal laws touching on speech must give fair notice of where the line is set between what is permissible and proscribed and must be drawn with appropriate definiteness. A court can invalidate a statute that is substantially overbroad on its face if the statute reaches a substantial amount of constitutionally protected conduct. Such a drastic remedy, however, is not the only-and not even the preferred-approach. Provided that a statute is reasonably susceptible to an interpretation that will render it constitutional, courts must construe the statute to conform to the Constitution, (pp. 21-28)

         3. The vaguely and broadly worded standard in N.J.S.A. 2C:33-4(c) does not put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes. The statute's vagueness also gives prosecuting authorities undue discretion to bring charges related to permissive expressive activities. That, in turn, means that the statute-if not more narrowly defined-has the capacity to chill permissible speech. Under N.J.S.A. 2C:33-4(c), a person who, with the purpose to seriously annoy another, does seriously annoy another is guilty of harassment. Speech, however, cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt. The First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society. Outside of the category of obscenity, courts should not play the role of censor by engaging in a weighing of an expression's value or relative social costs and benefits. Speech cannot be criminalized merely because others see no value in it. Nonetheless, neither the First Amendment nor Article I, Paragraph 6 of our State Constitution prohibits the State from criminalizing certain limited categories of speech, such as speech that is integral to criminal conduct, speech that physically threatens or terrorizes another, or speech that is intended to incite imminent unlawful conduct. The First Amendment also does not bar states from enacting laws that punish expressive activity when substantial privacy interests are being invaded in an essentially intolerable manner, (pp. 28-33)

         4. N.J.S.A. 2C:33-4 provides: "[A] person commits a petty disorderly persons offense if, with purpose to harass another, he: ... (c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." In cases based on pure expressive activity, the amorphous terms "alarming conduct" and "acts with purpose to alarm or seriously annoy" must be defined in more concrete terms consonant with the dictates of the free-speech clauses of our Federal and State Constitutions. Narrowly reading the terms alarm and annoy will save the statute from constitutional infirmity. Therefore, for constitutional reasons, the Court will construe the terms "any other course of alarming conduct" and "acts with purpose to alarm or seriously annoy" as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person's reasonable expectation of privacy. That standard applies only in those cases where the alleged harassing conduct is based on pure expressive activity, (pp. 33-36)

         5. The prosecution in this case targeted purely expressive activity and therefore the Court applies the heightened standard of subsection (c) set forth above. Neither the municipal court nor Law Division judge who sat in this case had the benefit of the standard developed in this opinion. They applied the statute as written. Although in other circumstances a remand might be appropriate, the Court sees no point here because even the most indulgent view of the record favoring the State would not support a harassment conviction under N.J.S.A. 2C:33-4(c). (pp. 36-38)

         The judgment of the Appellate Division is AFFIRMED.

         JUSTICE SOLOMON, DISSENTING IN PART, agrees with the majority's conclusion that N.J.S.A. 2C:33-4(c) required clarification because subsection (c)'s language is impermissibly vague. However, even under the majority's clarification of the statutory requirements for subsection (c), Justice Solomon finds that defendant Burkert's conduct violates the harassment statute.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE ALBIN's opinion. JUSTICE SOLOMON filed a separate opinion, dissenting in part.

          OPINION

          ALBIN JUSTICE.

         The free-speech guarantees of our Federal and State Constitutions safeguard not only polite and decorous conversation and debate but also speech that we hate -- speech that is crude, obnoxious, and boorish. A commitment to free discourse requires that we tolerate communication of which we strongly disapprove. This case tests the limits to which a broadly worded harassment statute can criminalize speech.

         William Burkert and Gerald Halton were corrections officers, who held positions in different unions representing distinct classes of corrections officers. Their relationship became particularly strained after Burkert read online comments attributed to Halton's wife that Burkert felt insulted him and his family. In response, Burkert downloaded a wedding photograph of Halton and his wife that was posted on social media and then inscribed degrading and vile dialogue on copies of the photograph. Copies of those photographs were found strewn in the employee parking garage and locker room of the Union County Jail.

         Halton filed three complaints in municipal court charging Burkert with harassment in violation of N.J.S.A. 2C:33-4(c), which makes it an offense to have engaged in a "course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy [a] person." Halton's private attorney prosecuted this quasi-criminal offense on behalf of the State while Halton contemporaneously pursued a civil action against Burkert. A municipal court judge found Burkert guilty of harassment on two of the complaints, as did a Law Division judge after a trial de novo on the record.

         The Appellate Division vacated Burkert's conviction, determining that although the flyers were wholly unprofessional and inappropriate for the workplace, they did "not amount to criminal harassment" in light of our constitutional free-speech guarantees.

         We affirm. Criminal laws targeting speech that are not clearly drawn are anathema to the First Amendment and our state constitutional analogue because they give the government broad authority to prosecute protected expressive activities and do not give fair notice of what the law proscribes. Such laws also chill permissible speech because people, fearful that their utterances may subject them to criminal prosecution, may not give voice to their thoughts.

         To ensure that N.J.S.A. 2C:33-4(c) does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to "alarm" and "seriously annoy" must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person's reasonable expectation of privacy. We consider that approach to be faithful to the legislative purpose in enacting subsection (c) of N.J.S.A. 2C:33-4 and consonant with the constitutional guarantees of free speech. Burkert's intent to annoy was not a crime, and he did not engage in the type of repetitive acts contemplated by the statute. Therefore, Burkert is not guilty of a petty disorderly persons offense, although he may be subject to workplace discipline or a civil tort action. The language on the flyers, despite its vulgarity and meanness, is constitutionally protected from a criminal prosecution for harassment.

         We therefore affirm the judgment of the Appellate Division, which dismissed the charges against Burkert.

         I.

         A.

         On September 30, 2011, Halton filed three separate complaints, alleging that Burkert committed the petty disorderly persons offense of harassment on January 8, 9, and 11, 2011, in violation of N.J.S.A. 2C:33-4(c)-[1] A three-day trial was held in the Elizabeth Municipal Court. Halton's privately retained attorney prosecuted the case on behalf of the State.[2]

         At trial, Halton and Burkert testified, as did two other corrections officers. The testimony, much of which was undisputed, elicited the following.

         As of January 2011, Halton and Burkert had both worked as Union County correctional officers for more than twenty years. Halton served as a sergeant and also as the vice president of the Fraternal Order of Police (FOP), a union representing high-ranking corrections officers. Burkert served as a corrections officer and also as the treasurer of the Policemen's Benevolent Association (PBA), a union representing rank-and-file corrections officers. The rivalry between those two unions evidently caused friction in their personal relationship. The tension became much more acute when Burkert learned that Halton's wife was posting derogatory comments about him and his family on a public internet forum. Halton's wife referred to Burkert and his two brothers -- who also were corrections officers -- as bullies. According to Burkert, the postings also described him as "fat" and one of his brothers as "quirky" and "kind of retarded."

         Angered by the insulting online comments, Burkert retaliated. Burkert downloaded the Haltons' wedding photograph, which Halton's wife apparently had posted on a social media website. He then copied the photograph and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom. On Flyer #1, over Halton's face were the words, "I know I'm a pussy with a little dick. Don't do the inmates please Laura, " and over his wife's face were the words, "I wish you had a cock like the inmates." On Flyer #2, over Halton's face, the writing stated, "Fam, I got me another whore." According to Halton, "fam" is a term denoting the corrections officers as family, and the dialogue on the flyers obliquely referenced his prior wife, a former corrections officer who he claimed had relations with another officer and an inmate.

         Halton testified that on January 8, 2011, at approximately 10:45 p.m., he arrived at the employee garage of the Union County Jail, parked his vehicle, and saw papers "blowing all over the place." He picked one up and discovered Flyer #1. Halton was offended and humiliated by the scurrilous writing over his wedding photograph. As he approached the gun locker area, Burkert and his brother, Sergeant Kevin Burkert, stood in his path. As he walked between them, Halton asked, "What's up, " and Burkert replied, "You're what's up." Later, while Halton was working at the booking area, he received a call from Burkert. During their conversation, Burkert mentioned that Halton's wife had called him fat; Halton denied having any knowledge of it. When asked, Burkert denied knowing about the flyers. The conversation came to an inconclusive end.

         The next day, January 9, when Halton arrived at work, a sergeant handed him Flyer #2, which the sergeant had found in the area of the officers' locker room. Halton identified the handwriting on both flyers as Burkert's.

         On January 11, while Halton was off his usual schedule and engaged in union negotiations for the FOP, a lieutenant handed him Flyer #2, stating, "This came out the other night." The flyer was the same one turned over to Halton two days earlier.[3]Halton indicated that he "was a mess in negotiations, " went home, and never returned to work. Halton explained that he felt embarrassed and concerned for his safety and received psychological counseling and treatment. He received workers' compensation benefits for this work-related injury and retired on November 1, 2011. Halton acknowledged that he did not know who was responsible for placing the flyers in the various locations.

         Ten months after the January incidents, Halton filed the criminal harassment charges. Halton stated that he filed the charges only because the county had failed to properly discipline Burkert.[4] He also filed a civil lawsuit against Burkert.

         During the county's investigation into the flyers, Sergeant Stephen Pilot interviewed Burkert. Sergeant Pilot advised Burkert that a refusal to give a statement would jeopardize his employment. Burkert admitted to Pilot that he had prepared the flyers but denied circulating them.[5]

         Burkert testified that he had been friends with Halton and became angry when he discovered that Halton's wife had been posting insulting comments about him and his brothers on a website for more than two years. While on the website, Burkert clicked a link to the wife's screen name, and the Haltons' wedding photograph appeared. He admitted downloading the photograph, inscribing the bubble dialogue over the Haltons' faces, and attaching the two flyers to the wall behind his desk in his union office. He denied, however, circulating the flyers that were later discovered in the garage and locker room. According to Burkert, on the evening of January 8, after the telephone conversation earlier described by Halton, he went to see Halton and said, "Here. I made the pictures. This is payback for what you did to my family." Burkert explained that he expressed himself through the flyers rather than "get physical with the guy." Burkert retired as a corrections officer in September 2012.

         No testimony was elicited that Burkert worked either on January 9 or 11, 2011.

         The municipal court entered a guilty verdict against Burkert for harassing Halton on January 8 and 11 in violation of N.J.S.A. 2C:33-4(c).[6] The court found that Burkert made and circulated the flyers in the garage and locker room, that the bubble dialogue inscribed on the Haltons' wedding photograph was "lewd and obnoxious, " and that such language would "seriously annoy any person, in this case Mr. Halton." The court imposed fines of $500 for each conviction and additional financial assessments and costs.

         B.

         In a de novo trial on the record before the Law Division, the court found Burkert guilty beyond a reasonable doubt of committing acts of harassment on January 8 and 11. The court determined that Burkert created and circulated the photographs and did so with the purpose to harass, and further that the harassing conduct was not protected by the First Amendment. More specifically, the court held that Burkert's intent in placing the vulgar language on the photos was to seriously ...


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