DANCHUK v. THE MAYOR AND COUNCIL OF THE BOROUGH OF MOUNT ARLINGTON

Filing 47

OPINION re 35 MOTION for Summary Judgment filed by THE MAYOR AND COUNCIL OF THE BOROUGH OF MOUNT ARLINGTON, 36 MOTION for Summary Judgment filed by PAULA DANCHUK. Signed by Magistrate Judge Cathy L. Waldor on 8/31/17. (tjg, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PAULA DANCHUK,
Plaintiff,

Action No. 2:15-cv-2028 (CLW)

v.
THE MAYOR AND COUNCIL OF THE
BOROUGH OF MOUNT ARLINGTON,

OPINION

Defendants.

THIS 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’ motion.
I.

Background
This 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.)
Consistent 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

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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.)
On 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

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respectively maintain that summary judgment should be entered in their favor, and the Court
addresses these claims and arguments in turn. 1
II.

Standard
Summary 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).
“When 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 nonmoving 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.

1

The parties briefly dispute whether Plaintiff adequately pleaded her federal causes of action, insofar as her Complaint
cites no federal statute, and Plaintiff seeks leave to amend in the event the Court finds an infirmity in this regard. See
Def. Opp., ECF No. 39, at 31-32; Pl. Reply, ECF No. 46, at 5-6. The Court finds that Plaintiff adequately asserted her
claims and allegations, and thus they are ripe for consideration on the competing motions for summary judgment.

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The 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).
III.

Discussion
The 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.
A.

Federal and State Due Process Claims (Count I)
Plaintiff first alleges that her due process “rights were violated by the censure resolution

which was passed by a bias[ed] and partial government body damaging her reputation with no
opportunity for her to defend herself or confront her accusers.” (Compl., ECF No. 1-1, ¶ 20.)
Plaintiff further contends that, in imposing the Censure, Defendants avoided giving her “due

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process by explicitly and intentionally avoiding New Jersey’s Local Government Ethics Law,
NJSA 40A:9-22.1, et seq., which was created with the specific intent and design to provide
constitutionally adequate due process rights to local elected officials[.]” (Id., ¶ 21.) In particular,
Plaintiff argues that she was denied “notice of the allegations, an impartial hearing before an
impartial tribunal, the opportunity to confront her accusers, and the opportunity to present a
defense.” (Id., ¶ 22.)
Defendants contend that “Plaintiff’s Complaint is part of Plaintiff’s ongoing feud with
[Defendants] and presents a nonjusticiable political question under the Federal and State
Constitutions [and] Plaintiff has not and cannot demonstrate that [Defendants] deprived her of any
property right or interest protected by” either due process clause. (Def. Motion, ECF No. 35-1, at
5.) Defendants further argue that Plaintiff fails to articulate a due process claim because she
identifies no deprivation of property or grievous loss. (Id., at 15-20.) On this point, Defendants
emphasize that the Censure “has no legal effect and cannot constitute an injury triggering Due
Process protections.” (Def. Opp., ECF No. 39, at 18.)
The Fourteenth Amendment to the U.S. Constitution provides that no State shall “deprive
any person of life, liberty, or property without due process of law.” A due process violation “is not
complete when the deprivation occurs; it is not complete unless and until the State fails to provide
due process.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (quoting Zinermon v. Burch, 494
U.S. 113, 126 (1990)). Thus, the Court must examine first whether the interest claimed is one
afforded protection under the Fourteenth Amendment and, if so, what procedures apply. Ingraham
v. Wright, 430 U.S 651, 672 (1977); Hill v. Borough of Kutztown, 455 F.3d 225, 235 (3d Cir.
2006) (citing Wisconsin v. Constantineau, 400 U.S. 433, 510 (1971)). And, while the liberty to
pursue a calling or occupation is secured by the Fourteenth Amendment, an individual does not

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have a protected property interest in reputation alone. Thomas v. Independence Tp., 463 F.3d 285,
297 (3d Cir. 2006) (citations and quotations omitted). Due process claims premised upon
reputational harm accordingly must pass the “stigma plus” test such that a loss of reputation must
be coupled with some other tangible interest. Paul, 424 U.S. at 701 (concluding that there exists
“no constitutional doctrine converting every defamation by a public official into a deprivation of
liberty” for due process purposes and noting that one’s employment may constitute requisite
separate interest); Hill, 455 F.3d at 236-38 (collecting cases in addressing whether deprivation
suffered by plaintiff was “sufficiently weighty to satisfy the ‘plus’ requirement”).
Plaintiff occupied an elected position and drew the ire of her cohorts, in pertinent part, for
her complaints about them. Defendants thereafter publically memorialized this ire in the Censure.
Plaintiff asserts that the Censure “had its intended effect[, with her] losing sleep, suffering
emotional pain, being excluded from the Committee meeting for her assigned Borough
Committees, having her voice quashed and becoming a figure head for the remainder of her
Council term before the damage to her reputation caused her to lose the election for her third term.”
(Pl. Motion, ECF No. 35-1, at 7; Pl. Opp., ECF No. 40, at 16-17.) Plaintiff’s complaint
encompasses such allegations only insofar as she characterizes the Censure as “retaliation” and
refers to her “publicly damaged [ . . .] political, professional, and personal reputation” as well as
her “malign[ed] character[.]” (Compl., ECF No. 1-1, ¶¶ 7, 11, 35, 41, 45.)
On consideration of the particular circumstances presented and with keen attention paid to
the terms of the Censure, it cannot be concluded that Plaintiff has satisfied the “stigma plus” test
and thereby identified a liberty interest to which due process protections apply. 2 Even considering
the totality of Plaintiff’s assertions gleaned from pleadings, briefs, and testimony, Plaintiff’s

2

The parties agree that the “stigma plus” test applies here and that reputational harm is insufficient for a due process
claim. (Def. Motion, ECF No. 35-1, at 16-17; Pl. Opp., ECF No. 40, at 16-17.)

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allegations are properly characterized as bare, unsubstantiated, and therefore insufficient to
implicate due process.
First, “[t]o satisfy the ‘stigma’ prong of the [‘stigma plus’] test, it must be alleged that the
purportedly stigmatizing statements(s) 1) were made publicly, and 2) were false.” Hill, 455 F.3d
at 236. Although Plaintiff describes the Censure as “rife with false allegations,” Compl., ¶ 6, she
has failed to demonstrate through competent evidence that the contents of the Censure were false.
At the very least, such veracity or lack thereof remains an open question, as Defendants stand by
the contents of the Censure and supply credible evidence in support of their position. Thus,
Plaintiff has not shown stigma to her reputation.
As to the “plus” prong, however, there is no such outstanding factual dispute and Plaintiff
cannot prevail. That is, putting aside the question of stigma, Plaintiff has not shown deprivation of
some additional right or interest. Plaintiff suggests, seemingly by reference to Hill, that she
satisfies the “plus” requirement through her re-election loss, emotional difficulty caused by the
Censure, poor treatment in the community, and status as a lame-duck official. (Pl. Opp., ECF No.
40, at 16-17.) Plaintiff offers no case law to support her contention that these allegations are
sufficient, and Defendants counter that “Plaintiff has failed to present evidence of any injury other
than the perceived harm to her reputation.” (Def. Opp., ECF No. 39, at 12-14.) The Court agrees.
Hill is distinguishable because it involved the sufficiency of the allegations on a motion to dismiss
where the plaintiff adequately stated a claim based on constructive or actual termination—neither
of which is alleged here. See 455 F.3d at 236-239. Moreover, the Court in Hill collected cases with
factual scenarios more friendly to plaintiffs than here that nonetheless did not satisfy the “plus”
requirement. Id., at 238 (in employment context, “plus” not met in cases where plaintiffs were
suspended with pay, reprimanded and disciplined but not suspended, had duties changed, or lost

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volunteer position); see also Sturm v. Clark, 835 F.2d 1009, 1012-13 (3d. Cir. 1987) (rejecting
reputation claim where attorney was not denied opportunity to see or pursue clients held in custody
and despite allegation that defendants characterized her as “disruptive and unprofessional” to the
detriment of her practice). In view of Plaintiff’s scant allegations, summary judgment in
Defendants’ favor is appropriate. See Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of
Higher Educ., 616 F.3d 963, 971 (9th Cir. 2010) (stating that “allegations of ‘psychological
trauma” are not sufficient to satisfy Paul’s ‘stigma-plus’ test” and citing Rolon v. Henneman, 517
F.3d 140, 148 (2d Cir. 2008) for the proposition that “humiliation, embarrassment, and emotional
distress are not cognizable protected interests under Paul”).
Application of state-specific due process case law warrants the same conclusion. In New
Jersey, “[w]here a person’s good name or reputation are at stake because of what the government
is doing to that person, [. . .] sufficient constitutional interests are at stake[]” such that the inquiry
looks for “a protectible interest in reputation without requiring any other tangible loss.” Doe v.
Poritz 142 N.J. 1, 104-05 (N.J. 1995) (citing Grodjesk v. Jersey City Medical Ctr., 135 N.J.Super.
393, 411-12 (Ch.Div. 1975)). The inquiry, however, remains fact-intensive, id., and reputational
harm must be more than de minimis. In re L.R., 321 N.J. Super. 444, 460 (N.J. Super. Ct. App.
Div. 1999) (stating that lenient state standard “does not mean that a liberty interest is implicated
anytime a governmental agency transmits information that may impugn a person’s reputation”).
This apparently more liberal standard nonetheless does not rescue Plaintiff’s claims, as she offers
modest and unsubstantiated allegations of reputational harm. In Grodjesk, for example, the Court
found that the “censure by the [hospital’s] executive committee has unquestionably damaged
plaintiffs’ reputation and their professional standing as oral surgeons.” 135 N.J.Super. at 412-13.
Moreover, in Doe v. Poritz, the Court reiterated that a heightened sex offender designation “inflicts

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a greater stigma than that resulting from the conviction for a sex offense, when there is no such
classification” and noted that one’s “liberty interest is more significant” when “prior undisclosed
criminal history and his new classification become [publically] known.” 142 N.J. at 105-06. Both
cases are therefore distinguishable by the comparatively weighty interests and harm at stake;
Plaintiff, by contrast, presents no evidence of endangered livelihood or societal ostracization. In
particular, she only speculates that her re-election loss is causally connected to the Censure and
fails to supply competent evidence of her diminished community standing. Summary judgment in
Defendants’ favor on this claim, accordingly, is appropriate.
B.

Federal and State Free Speech Claims (Counts IV and VI)
Plaintiff claims that Defendants censured her “for constitutionally protected speech,

political speech and affiliation, and complaints to the” MCPO and asserts that the Censure
unconstitutionally burdens her rights and the rights of other elected officials “to communicate
protected expression.” (Compl., ECF No. 1-1, ¶¶ 34-36, 43; Pl. Motion, ECF No. 36-1, at 37-40.)
Plaintiff adds that the Censure violates the New Jersey Constitution because it infringes “the right
to freely speak, affiliate, write, and publish one’s sentiments absent abuse.” (Id., ¶ 37.) Plaintiff
emphasizes the retaliatory character of the Censure as well as how Defendants “aggressively and
angrily derided” her in relation to her complaints to the MCPO. (Id., ¶¶ 43-45.) Plaintiff also avers
that the Censure “functions to unconstitutionally regulate [her], and other current and future
elected office holders, for constitutionally protected and lawful actions and speech, the [e]ffect of
which may deter or chill constitutionally protected speech or political affiliation[.]” (Id., at ¶ 25.)
Defendants argue that these counts must fail because “Plaintiff has not presented any
evidence demonstrating that she was subjected to a retaliatory action by the Governing Body that
would deter a person of ordinary firmness from exercising his or constitutional rights.” (Def.

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Motion, ECF No. 35-1, at 27; Def. Opp., ECF No. 39, at 27-28.) Defendants emphasize that the
Censure “is devoid of any penalties and does not subject Plaintiff to any punishment.” (Id.)
To succeed on a retaliation claim under the First Amendment or the New Jersey
Constitution, 3 a plaintiff must show “1) constitutionally protected conduct, 2) retaliatory action
sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and 3) a
causal link between the constitutionally protected conduct and the retaliatory action.” Thomas, 463
F.3d at 296 (citations omitted). The Court undertakes a fact-intensive inquiry to determine whether
one’s First Amendment rights were violated by retaliatory conduct, such that the Court considers
“the status of the speaker, the status of the retaliator, the relationship between the speaker and the
retaliator, and the nature of the retaliatory acts.” Brennan v. Norton, 350 F.3d 399, 419 (3d Cir.
2003) (quoting Suarez Corp. Industries v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000) (quotations
and emphasis omitted)). Importantly, the nature of the retaliatory act must be more than trivial and
there can be no violation where the actions were merely criticism, false accusations, or verbal
reprimand. Id.
Consistent with the foregoing due process analysis, it must again be concluded that the
Censure does not possess the legal significance that Plaintiff ascribes to it. However detailed in its
recitation of Plaintiff’s alleged misdeeds it may be, the Censure is not a charging document and
contemplates no penalties or prospect thereof. By its terms, the Censure provides that it was issued
“in lieu of” an ethics complaint and thereby expressly disavows any pursuit of formal process by
Defendants. Without more, the purported retaliation is mere de minimis criticism, accusations, or
reprimand insufficient to deter a person of ordinary firmness from exercising constitutional rights

3

“Because these protections are ‘generally interpreted to be co-extensive with the First Amendment,’ the federal
analysis applies to the New Jersey claims as well.” Farneski v. Cty. of Hunterdon, 916 F. Supp. 2d 573, 582, n.10
(D.N.J. 2013) (quoting New Jersey v. Schad, 160 N.J. 156, 733 A.2d 1159, 1169 (1999)).

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and, hence, does not run afoul Plaintiff’s federal and state rights to free speech. In particular, it
must be emphasized that Plaintiff offers no analogous case law to support her conclusions and
likewise offers bare and speculative allegations as to the chilling effect of the Censure. Indeed, the
weight of the authority supports Defendants’ position that summary judgment should be entered
in their favor on these claims. For example, a Court in this District granted summary judgment
against a plaintiff where “the censure resolution carried no consequences for [his] speech” and
“merely voiced the council’s collective disapproval over his comments.” Page v. Braker, 2007 WL
432980, at *3 (D.N.J. Jan. 31, 2007). That Court further noted that it could not “see how a mere
showing of disapproval, expressed by a councilman’s colleagues, and lacking any real force or
punishment, could prevent a person of ordinary firmness from exercising his constitutionally
protected speech.” Id. So too, here, as the Censure is an expression of Defendants’ disapproval,
lacks real force or punishment, and accordingly does not equate to a retaliatory act.
Similarly, there is no infirmity with the Censure insofar as it indicates Defendants’ view
that Plaintiff committed ethical violations but that a formal complaint would not be pursued. A
retaliatory act may take the form of “a threat, coercion, or intimidation, intimating that punishment,
sanction, or adverse regulatory action will follow” provided such an act is not minimal. Mirabella
v. Villard, 853 F.3d 641, 650-51 (3d Cir. 2017) (citations and quotations omitted). Again, the
Censure is minimal in that it provides no punishment or threat of the same. Rather, it is an explicit
and straightforward admonishment for alleged prior behavior that is insufficient to constitute a
retaliatory action. See id. (holding that, while a prohibition of further government contact
constitutes a retaliatory act, a threat to move for sanctions in the event of litigation does not) (citing
Novoselsky v. Brown, 822 F.3d 342 (7th Cir. 2016) for its “holding that there was no retaliatory

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act where government official filed an attorney disciplinary complaint against the plaintiff and
publicly accused him of litigiousness”).
This result comports with cases from other jurisdictions. Faced with a similar scenario, the
Tenth Circuit affirmed a grant of summary judgment and found that a censure issued by a board
of trustees regarding one of its members did not trigger First Amendment scrutiny where the board
“sought only to voice their opinion that [plaintiff] violated the ethics policy and to ask that she not
engage in similar conduct in the future[]” and where “[t]heir statement carried no penalties” or
deterrence. Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trustees, 235 F.3d 1243, 1247-49 (10th Cir.
2000); see also Zilich v. Longo, 34 F.3d 359, 363-64 (6th Cir. 1994) (holding city council
resolution expressing disapproval of a former council member did not violate the First Amendment
because it was not law and contained no penalty). Summary judgment is therefore appropriate in
favor of Defendants on Plaintiff’s free speech claims.
C.

Remaining Claims (Counts II, III, V, VII)
In the remaining Counts, Plaintiff offers additional claims relating to the Censure. First,

Plaintiff objects to the Censure on the basis of vagueness and overbreadth while suggesting that
such an “overbroad governmental action imposes punishment[]” and that it violates her federal
and state due process rights “by prohibiting acts expressed in terms so vague that reasonable people
of ordinary intelligence might apply it differently.” (Compl., ECF No. 1-1, Count II, ¶¶ 25-27.)
Next, by reference to NJSA 40A:9-22.1, et seq., Plaintiff contends that New Jersey “has
adopted comprehensive laws regulating and pre-empting [Defendants] from acting as prosecutor,
judge, and jury without properly investigating and holding fair and impartial public hearings on
allegations like those contained in the” Censure. (Compl., ECF No. 1-1, Count III, ¶ 29.) Plaintiff
points to the terms of the Censure reflecting Defendants’ cost-conscious decision to issue the

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Censure “in lieu filing a Complaint with the Local Finance Board for allegations of violations of
the Local Government Ethics Law” to argue that Defendants “impermissibly attempted to control
areas pre-empted by the State statutes [and that] the censure is thus ultra vires and
unenforceable[.]” (Id., ¶¶ 30-32.)
Plaintiff also asserts that the Censure must be vacated as arbitrary and capricious because
it was a “wholesale abuse [of] government powers” that was passed without “a substantive
investigation” by the “politically biased” Defendants without adequate notice. (Compl., ECF No.
1-1, Count V, ¶¶ 39-41.) Relatedly, Plaintiff argues that she was “entitled to proper notice of the
charges and the hearing.” (Id., Count VII, ¶¶ 47-49.)
Plaintiff offers various related arguments in support of these claims, including: Defendants
improperly circumvented the state ethics law and its mandated procedures; the “police power
expressed” in the Censure punished Plaintiff “for conduct no person of ordinary intelligence could
discern[;]” and Defendants do “not clearly define what conduct is punishable” in the Censure. (Pl.
Motion, ECF No. 36-1, at 27-44; Pl. Reply, ECF No. 40, at 13-22.)
The parties’ arguments with respect to these remaining claims concern the scope of
Defendants’ power and the nature of the Censure; their arguments address statutes concerning
borough councils and ethics complaints as well as case law applying the same. Plaintiff construes
Defendants’ power narrowly, such that they exceeded their authority in passing a punitive
resolution that required certain specificity and accompanying procedures—or a different issuing
authority altogether. (Pl. Opp., ECF No. 40, at 19; Pl. Reply, ECF No. 46, at 1-2.) In particular,
Plaintiff cites the statute concerning borough governance for the following limited “[p]owers of
the council:”

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pass, adopt, amend and repeal any ordinance or, where permitted,
any resolution for any purpose required for the government of the
municipality or for the accomplishment of any public purpose for
which the municipality is authorized to act under general law[.]
(Pl. Opp., at 19. (citing N.J. Stat. Ann. § 40A:60-6(b)(1)).)
Defendants, on the other hand, maintain that the statutes relied upon by Plaintiff do not
exhaustively define their powers and leave ample room for Defendants to issue—as they did with
the Censure—an opinion or otherwise legally inconsequential declaration. (Def. Motion, ECF No.
35-1, at 19-26, 38-40; Def. Opp., ECF No. 39, at 18-23; Def. Reply, ECF No. 45, at 21-27.)
Defendants thus argue that notions of vagueness, overbreadth, and notice are wholly inapplicable
to the Censure. (Id.) To support their view that the Censure was permissible, Defendants stress not
only that the Censure was an opinion unbounded by particular grants of authority but also that the
Ethics Law’s non-exclusivity is evidenced by its proviso that “[t]he remedies provided herein are
in addition to all other criminal and civil remedies provided under the law.” N.J. Stat. Ann. §
40A:9-22.10(c).
Lastly, the parties disagree as to the import of decision from the New Jersey Supreme
Court, wherein a treatise was cited favorably as follows:
An ordinance is distinctively a legislative act; a resolution, generally
speaking, is simply an expression of opinion or mind concerning
some particular item of business coming within the legislative
body’s official cognizance, ordinarily ministerial in character and
relating to the administrative business of the municipality.
Inganamort v. Borough of Fort Lee, 72 N.J. 412, 418 (1977) (citations omitted).
Against this backdrop, these claims fail for substantially the same reasons as the due
process and free speech claims. First, there is no basis in the statutes or case law to deprive
Defendants of their ability to express a view as limited as the one set forth in the Censure. It again
bears emphasizing that Defendants did not impose punishment, let alone acted as judge or jury in

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doing so; Plaintiff was free to exercise her discontent with Defendants, and indeed did so with
aplomb over a sustained period. Moreover, the plain language of the statutes does not reasonably
support the conclusion that Defendants were foreclosed from acting as they did and were
constrained to act in other, more formal ways. Instead, the statutes delineate the power of borough
councils and the process of adjudicating ethics complaints but are quite understandably silent as
to those actions that have no actual legal effect; to hold otherwise would be to produce the absurd
result that a council may only speak or operate in the precise manner provided by statute—at the
cost of committing a constitutional violation.4 To be sure, were the circumstances changed and
were Defendants to mete out punishment through a censure, then it may be that the interplay
between the statutes applicable to borough governance and ethics complaints would command a
different result. But that is not the case here and, thus, pre-emption does not apply. Similarly,
Plaintiff presents no cognizable claim on the basis of vagueness, overbreadth, and notice because,
simply put, none of these principles is implicated by the Censure. The Censure, being something
that imposes nothing other than assertions without punishment, need not conform to such
constitutional dictates by way of precision or procedure. Summary judgment, therefore, is
appropriate for Defendants on these Counts.
IV.

Conclusion
As set forth herein, Defendants’ motion for summary is granted and Plaintiff’s is denied.5

An appropriate Order follows.

4

In reply, ECF No. 46, Plaintiff submits a comprehensive recitation of instances in which a resolution, by statute,
serves a particular cognizable legal purpose. Although resolutions in those other areas no doubt embody a certain
power, Plaintiff’s argument ignores the content of the resolution here, which is to say that the Censure contains nothing
except laments (as to Plaintiff’s alleged past behavior) and directions (as to Plaintiff’s prospective behavior). The
Censure achieves and memorializes nothing else, which stands in stark contrast to, for example, a resolution as
authorized by statute that permits a county to create a public sewerage.
5
The Court, accordingly, declines to address the parties’ arguments regarding the political question doctrine.

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