MERCURO v. BORO OF HALEDON et al
Filing
16
OPINION. Signed by Judge Dennis M. Cavanaugh on 6/30/11. (dc, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
:
LOUIS MERCURO
:
:
Plaintiff,
:
Hon. Dennis M. Cavanaugh
:
v.
:
OPINION
:
BORO OF HALEDON, BORO
:
Civil Action No. 10-CV-1783(DMC)(JAD)
COUNCIL HEATHER KILMINSTER, :
BORO COUNCIL MICHAEL TIRRI, :
BORO COUNCIL REYNALDO
:
MARTINEZ, MAYOR DOMINIC
STANPONE, BORO
ADMINISTRATOR ALLAN SUSAN,
JOHN DOES 1-10, ABC and ABC
CORPORATIONS 1-10,
Defendants.
_________________________________
DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon motion by Borough of Haledon, Councilperson Heather
Kilminster, Councilperson Michael Tirri, Councilperson Reynaldo Martinez, Mayor Domenick
Stampone, and Administrator Allan Susen (collectively “Defendants”) to dismiss Plaintiff’s claims which
are addressable in state court and to stay proceedings of the remaining federal claims pending the
resolution of the administrative proceedings in state court. Pursuant to Fed. R. Civ. P. 78, no oral
argument was heard. For the reasons set forth below, Defendants motion is granted in part and denied
in part.
I.
BACKGROUND 1
Louis Mercuro (“Plaintiff”) is Chief of Police with the Borough of Haledon Police Department.
Plaintiff was originally hired by Borough of Haledon Police Department on October 10, 1980, and
received the following promotions: Sergeant on May 8, 1987; Lieutenant in September 2001; Acting
Chief in September 2004 through February 2005; Chief in 2005. During his career, and prior to the
events at issue, Plaintiff was only disciplined once in 1981 and received a three day suspension.
Defendants are the Borough of Haledon; the Borough of Haledon Police Department; Haledon
Borough council members Heather Kilminster (“Kilminster”), Michael Tirri (“Tirri”), Reynaldo Martinez
(“Martinez”); Mayor of Borough of Haledon, Dominic Stanpone (“Stanpone”); and Borough of Haledon
Administrator Allan Susan (“Susan”).
Plaintiff alleges that he was informed by the Federal Bureau of Investigations (“FBI”) and the
New Jersey State Police of an investigation of residents of the Borough of Haledon, specifically
Defendant Kilminster and former Councilman Alan Souto. Plaintiff also alleges that in his official
capacity as Chief he closed down and/or investigated several bars, and that he was told to leave these bars
alone due to Defendants relationships with these bars.
On June 4, 2009, Plaintiff, in full police uniform, spoke at a public meeting of the Borough of
Haledon governing body, and made statements alleging there was an ongoing criminal investigation of
certain council members and that certain council members used cocaine.
On June 5, 2009, Plaintiff was served with a Preliminary Notice of Disciplinary Action notifying
Plaintiff of the disciplinary charges against him and immediately suspending him with pay pending final
1
These facts have been adopted from the Parties’ respective submissions.
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resolution of the matter. Additional charges were filed on January 14, 2010, and again on March 3, 2010.
Plaintiff brought claims pursuant to 42 U.S.C. § 1983 alleging violations of his First Amendment
right to free speech (Count I); his Fifth and Fourteenth Amendment rights (Counts VIII and XV); for
supervisory liability against the individual Defendants (Count X); and for the Borough’s failure to train
and supervise persons in investigating complaints of police misconduct (Count XI). Plaintiff also brought
a claim pursuant to 42 U.S.C. § 1988 (Count XIII). Plaintiff also brought state law claims pursuant to the
New Jersey Constitution for retaliation in violation of Plaintiff’s state constitutional right to free speech
(Count II); pursuant to New Jersey’s Conscientious Employee Protection Act (“CEPA”) (Count III); and
pursuant to various state statutes and Borough Ordinances governing the duties and procedures for the
administration of police departments and discipline of police officers (Counts IV, V, VI, VII, IX, XII, and
XIV). Plaintiff is seeking both injunctive and compensatory relief in the form of reinstatement,
withdrawal of disciplinary charges, back and front pay, punitive damages, and attorneys fees.
Disciplinary proceedings commenced in the summer of 2010, and are ongoing. Defendants are
seeking a dismissal of Plaintiff’s claims that are addressable in state court proceedings, and a stay of
proceedings related to any remaining federal claims pending resolution of the ongoing disciplinary
proceedings against Plaintiff.
II.
LEGAL STANDARD
In deciding whether or not to abstain from exercising its jurisdiction in a case where, as here,
parallel state administrative proceedings are ongoing, this Court must analyze its abstention liability
pursuant to the principles promulgated in Younger v. Harris, 401 U.S. 37 (1971). PTK, LLC v. Borough
of Fort Lee, 2008 WL 796954, * 3 (Mar. 24, 2008).
“Younger ... and its progeny espouse a strong federal policy against federal court interference with
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pending state judicial proceedings absent extraordinary circumstances.” Middlesex Cty. Ethics Comm.
V. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982). The notion underlying Younger abstention is
“comity, [which] includes a proper respect for state functions,” and “[m]inimal respect for state processes,
of course, precludes any presumption that the state courts will not safeguard federal constitutional rights.”
Id.
Although Younger involved state criminal proceedings, the “principle has been extended to civil
proceedings and state administrative proceedings.” Yang v. Tsui, 416 F.3d 199, (3d Cir. 2005); see also
Middlesex County Ethics Comm. V. Garden State Bar Ass’n, 457 U.S. 423 (1982) (finding abstention
appropriate pending state bar disciplinary proceeding); Zahl v. Harper, 282 F.3d 204, 209-10 (3d Cir.
2002) (finding abstention appropriate pending disciplinary proceedings before the state medical board)
; Williams v. Red Bank Bd. of Educ., 662 F.2d 1008 (3d Cir. 1981) (finding abstention appropriate
pending state administrative tenure proceeding against school teacher), overruled on other grounds as
recognized in Schall v. Joyce, 885 F.2d 101, 108 (3d Cir.).
There is a three part test for determining whether Younger abstention is appropriate. Zahl, 282
F.3d at 209; Yang, 416 F.3d at 202. First, there must be an ongoing state judicial proceeding; second, the
proceedings must implicate important state interests; and third, there must be an adequate opportunity in
the state proceedings to raise constitutional challenges. See Middlesex County, 457 U.S. at 432; Yang,
416 F.3d at 202; Zahl, 282 F.3d at 209. “Even if this test is met, however, abstention is not appropriate
if the plaintiff establishes that extraordinary circumstances exist such that deference to the state proceeding
will present a significant and immediate potential for irreparable harm to the federal interests asserted.”
Id. (internal citations omitted).
If the requirements for abstention are met, and state court proceedings are adequate to resolve
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Plaintiff’s federal claims, this Court may properly dismiss Plaintiff’s federal suit. See e.g. Williams, 622
F.2d at 1022-23; PTK, 2008 WL 796954 at *6. However, if Plaintiff’s claims seek additional relief that
would not be available in the state administrative proceedings, this Court should stay the federal
proceeding rather than dismiss it. See Deakins v. Monaghan, 484 U.S. 193, 202-03 (1988); Williams, 622
F.2d at 1023.
III.
DISCUSSION
Defendants argue this Court should abstain, pursuant to Younger, from hearing this matter because
state administrative proceedings are pending. This Court will apply the Younger requirements as laid out
above.
First, this Court finds that there are ongoing judicial proceedings. There is no dispute that, at the
time this motion was filed,2 disciplinary proceedings were ongoing. However, Plaintiff argues that the
disciplinary proceedings cannot properly be considered judicial proceedings because they are conducted
at the “local” (i.e. municipal) level, the hearing officer is a civilian, and the hearing officer will make a
recommendation on the disciplinary charges to the municipality for it to then accept or reject. Plaintiff
has cited no case law which supports his argument that administrative proceedings at a “local” level, or
with a civilian hearing officer, cannot be judicial in nature. This omission is especially glaring in light of
the fact that disciplinary proceedings have previously been found to be judicial in nature, see e.g.
Middlesex County, 457 U.S. at 433-34 (finding state bar disciplinary proceeding judicial in nature), even
when conducted at a local level and by civilians. See Williams, 662 F.2d at 1019-21 (finding disciplinary
proceeding instituted by local school board judicial in nature and rejecting plaintiff’s argument that
2
As of the date of this Opinion, the status of disciplinary proceedings is unclear.
However, since this Court has not been informed that situation has changed since the filing of the
motion, this Court assumes that the disciplinary proceedings are still ongoing.
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administrative proceedings decided by non-lawyers were inadequate). Additionally, the disciplinary
hearing process at issue comports with the scheme as set out by the New Jersey legislature. See e.g.
N.J.S.A. 40A:14-118, -147, -148. Also, Plaintiff has the right to appellate review by the state court if he
wishes to challenge the outcome of the disciplinary proceedings. See Zahl, 282 F.3d at 209 (finding right
to appellate review of administrative decision weighs in favor of finding the proceedings judicial in
nature). Accordingly, the first requirement is satisfied.
Second, this Court finds that the disciplinary proceedings involve important state interests. The
state has an obvious interest in regulating and disciplining its police officers. See e.g. State Trooper
Fraternal Ass'n v. State of N.J., 2009 WL 5064770, at *7 (D.N.J. Dec. 16, 2009) (“The state has a
legitimate interest in preserving confidence in its police force. “); Terry v. Town of Morristown, 2007 WL
2085351, at *4 (D.N.J. July 17, 2007) (“The State of New Jersey has a significant interest in maintaining
and assuring the professional conduct of its police force.”); Rosko v. Pagano, 466 F. Supp. 1364, 1371
(D.N.J. 1979) (describing the importance to the state of regulating its police force). Here, the disciplinary
proceedings concern allegations that Plaintiff violated several Police Departments rules and regulations.
Thus, the second requirement is also met.
Finally, this Court finds that the third prong is satisfied. The Third Circuit has held that “this third
element is satisfied in the context of a state administrative proceeding when the federal claimant can assert
his constitutional claims during state-court judicial review of the administrative determination.” O’Neill
v. Philadelphia, 32 F.3d 785, 792 (3d Cir. 1994). Here, Plaintiff has a right to appeal the result of the
disciplinary proceedings to the state court. N.J.S.A. 40A:14-150. Additionally, Plaintiff is entitled to
supplement the record for the state court review. Id. Therefore, even if, as Plaintiff alleges, he is unable
to raise the federal constitutional challenges during the disciplinary hearings, he still has the opportunity
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to raise these challenges during the state court review of the administrative decision. As such, this Court
finds that Plaintiff does have an adequate opportunity to raise federal constitutional challenges in the state
proceedings.
Since the three requirements are satisfied, this Court must abstain pursuant to Younger unless
Plaintiff has demonstrated that exceptional circumstances exist such that he will suffer irreparable harm
if this Court abstains. While not unsympathetic to Plaintiff, this Court finds Plaintiff has not shown any
such exceptional circumstances exist.
Although this Court finds that abstention under Younger is proper, since Plaintiff’s claims request
additional relief that is not available in the administrative proceedings, it is likewise appropriate for this
Court to stay, rather than dismiss, Plaintiff’s claims.
Accordingly, this Court finds abstention appropriate, and will stay all federal proceedings pending
the resolution of the state administrative proceedings.
IV.
CONCLUSION
For the foregoing reasons, this Court will abstain from exercising its jurisdiction and will stay
Plaintiff’s civil claims pending the outcome of the state administrative proceedings and any related appeal
to the New Jersey Superior Court. This matter may hereby be reopened upon application within sixty (60)
days of the conclusion of the state proceedings, or within sixty (60) days of the entry of this Opinion and
Order, whichever is later. An appropriate Order accompanies this Opinion.
S/ Dennis M. Cavanaugh
Dennis M. Cavanaugh, U.S.D.J.
Date:
Original:
cc:
June 30 , 2011
Clerk
All Counsel of Record
Hon. Joseph Dickson, U.S.M.J.
File
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