CURLEY v. MONMOUTH COUNTY BOARD OF CHOSEN FREEHOLDERS et al

Filing 57

OPINION filed. Signed by Judge Brian R. Martinotti on 7/25/2018. (km)

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
:
:
Plaintiff,
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v.
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:
MONMOUTH COUNTY BOARD OF
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CHOSEN FREEHOLDERS, et. al.
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Defendants.
:
____________________________________:
JOHN CURLEY,

Civil Action No. 3:17-cv-12300-BRM-TJB

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are: (1) John Curley’s (“Cu rley”) Motion to Hold Defendants Monmouth
County Board of Chosen Freeholders (“the Board”), Serena DiMaso (“DiMaso”), Thomas Arnone
(“Arnone”), Gary Rich (“Rich”), Lillian Burry (“Burry”), Michael Fitzgerald, Esq. (“Fitzgerald”),
Teri O’Connor (“O’Connor”) (together, “Defendants”) in Contempt (ECF No. 8) 1; (2) the County
Defendants’ Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (ECF No.
26); and (3) Fitzgerald and O’Connor’s Motion to Dismiss (ECF No. 32). All motions are opposed.
(ECF Nos. 24 and 43.) Pursuant to Federal Rule of Civil Procedure 78(a), the Court heard oral
argument on April 30, 2018. For the reasons set forth below, the County Defendants’ Motion to
Dismiss for Lack of Jurisdiction is DENIED, but their Motion to Dismiss for Failure to State a

1

Defendants Monmouth County Board of Chosen Freeholders, DiMaso, Arnone, Rich, and Burry
will jointly be referred to as the “County Defendants.” DiMaso, Arnone, Rich, and Burry will
jointly be referred to as “Freeholder Defendants.”

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Claim is GRANTED (ECF No. 26); Fitzgerald and O’Connor’s Motion to Dismiss is GRANTED
(ECF No. 32); and Curley’s Motion to Hold Defendants in contempt is GRANTED (ECF No. 8).
I.

BACKGROUND
A.

Factual Background

For the purposes of the motions to dismiss only, the Court accepts the factual allegations
in the Complaint as true and draws all inferences in the light most favorable to plaintiff. See
Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). The Court also considers any
“document integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
1.

The Parties

Curley is an elected Freeholder on the Board. (Am. Compl. (ECF No. 7) ¶ 13.) He was
elected by the citizens of Monmouth County (the “County”) to serve for three terms totaling, to
date, approximately eight years. (Id. ¶ 29.) His term is set to expire on December 31, 2018. (Id.)
Curley has also been the Deputy Director of the Board since 2016. (Id. ¶ 30.) According to local
media reports, Curley is “nominally a Republican, [and] has a fierce independent streak that has
at times angered fellow Republicans but has served county residents well.” (Id. ¶ 2 (quoting Asbury
Park Press’s October 28, 2015 endorsement in the 2015 Freeholder election in Monmouth
County).) Curley alleges he “has been a persistent and regular advocate of positions that have run
contrary to the Republican political establishment on the Board, and in the County’s party
leadership, and has been unafraid to challenge the purported majority view of the Freeholders.”
(Id. ¶ 3.) Throughout his tenure, Curley was provided an office for and has employed confidential
aides to assist him in fulfilling his functions as a Freeholder. (Id. ¶ 42.)

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The Board “is the body politic of the County, which has been delegated both legislative
and executive functions by the State pursuant to N.J. Stat. Ann. [§] 40:20-1 et seq., and as specified
in the Monmouth County Administrative Code (the ‘Code’)”. (Id. ¶ 14.) DiMaso, Burry, Rich, and
Arnone are also Freeholders on the Board. (Id. ¶¶ 15-18.) Fitzgerald is the appointed counsel for
the Board. (Id. ¶ 19.) He “was appointed in 2016 as the County Counsel to be the chief legal
advisor to the Board for a three-year term.” (Id. ¶ 31.) O’Connor has been the appointed County
Administrator for the Board since 2010. (Id. ¶ 32.)
2.

The Investigation

In June 2017, O’Connor and Fitzgerald retained the Honorable Mary Catherine Cuff,
P.J.A.D. (ret.) (the “Investigator”) to investigate a complaint by an unknown woman alleging
Curley made a sexist remark in public during the May 2017 Bradley Beach Memorial Day Parade.
(Id. ¶¶ 44, 51, 53; see Investigator’s Report (ECF No. 2) at 1, 5-6.) The Investigator interviewed
multiple witnesses, including DiMaso and Curley, who was interviewed with his attorney present.
(ECF No. 2 at 19-22.) Curley alleges the investigation was initiated without the approval of the
Board and that the Investigator was also retained without the Board’s approval. (ECF No. 7 ¶¶ 5152.) The investigation lasted approximately five months. (Id. ¶ 53.) Ultimately, the investigation
resulted in the issuance of a report (the “Report”), which was released to Fitzgerald on October
13, 2017. (Id. ¶ 54.) Section I of the Report, “Statement of Allegations,” contains the substance of
the interviews; Section II contains a statement of law governing sexual harassment in the
workplace; Section III contains the Investigator’s conclusions on the credibility of the statements
made during the interviews, and Section IV contains the Investigator’s recommendations. (ECF
No. 2.) The Investigator found credible many of the allegations that Curley made sexist remarks

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about women. (Id.) Therefore, she concluded Curley’s alleged conduct could support an inference
of sex discrimination or hostile work environment. (Id. at 46.)
3. The Board Censures Curley
On November 26, 2017, Fitzgerald sent the Freeholders a copy of the Report. They noticed
and held a special meeting of the Board to be held in Executive Session for November 29, 2017,
“where the Freeholders would discuss the Report and Fitzgerald and O’Connor would present
recommendations to act on the Report.” (ECF No. 7 ¶¶ 60-62.) Curley arrived with counsel for the
Executive Session, but Fitzgerald informed him “he could not attend the meeting at its start to
make a statement, since he was a ‘target.’” (Id. ¶¶ 62-63.) When Curley’s counsel informed
Fitzgerald he wanted to put his objections to the proceeding on the record, Fitzgerald threatened
to call the County Sheriff to remove Curley from the meeting. (Id. ¶ 64.) At the meeting, Curley
“requested that DiMaso recuse herself given that she was . . . one of the complainants” or that
Curley and DiMaso both be recused. (Id. ¶¶ 69-70.) Both requests were denied. (Id.) Eventually,
Curley was permitted to speak but was cautioned “that he was not permitted to speak about or
address the merits of the Report.” (Id. ¶ 65.) Curley, in lieu of speaking, presented a letter and
memorandum, drafted by his counsel, setting forth his position. (Id. ¶ 71.) Curley’s counsel was
denied access to the Executive Session. (Id. ¶ 68.) The Executive Session was not conducted on
the record—instead, handwritten notes were taken that have yet to be provided to Curley. (Id. ¶¶
66-67.)
After the Executive Session, O’Connor and Fitzgerald met with Curley and his attorney.
(Id. ¶ 74.) They explained that Curley is barred from entering the Hall of Records, where the Board
conducts its business, unless he was conducting County business, and that Curley could not have
any contact with County employees, including his aide, until a special meeting and subsequent
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public session was held on December 4, 2017, to consider the following: (1) updating, expanding,
and reinforcing the Monmouth County policy on prohibiting workplace discrimination and
harassment; and (2) a resolution to censure Curley (the “Censure Resolution”). (Id. ¶¶ 75, 77, 8190.) Curley alleges O’Connor and Fitzgerald made these decisions without vote or approval of the
Board. (Id. ¶ 76.) Fitzgerald indicated Curley and his counsel would be allowed to attend the
December 4 meeting and would be allowed to question the investigator, but not confront the
witnesses. (Id. ¶ 79.) The above restrictions on Curley remained in place for two days, during
which time, on November 30, 2017, Curley worked at the Hall of Records in order to “fulfill[] his
duties as an elected Freeholder.” (Id. ¶ 86.)
4. Curley’s Federal Complaint, Application for a Temporary Restraining
Order, and Motion for a Preliminary Injunction
On December 1, 2017, Curley filed his initial Complaint with an Order to Show Cause
seeking Temporary Restraints and a Preliminary Injunction, to prevent Defendants from
proceeding with the Censure Resolution on December 4, 2017, and to provide Curley with access
to his office and confidential aide. (ECF No. 1 and ECF No. 7 ¶ 91.) On that same day, the Court
held a telephone conference, where the parties ultimately agreed to adjourn the special meeting
from December 4 to December 8, 2017. In addition, Defendants agreed to provide Curley with
access to the Hall of Records. (ECF No. 7 ¶ 92.)
On December 4, 2017, the parties appeared before the Court and agreed that Curley would
withdraw his Motion for Temporary Restraints and allow the special meeting to go forward on
December 8. (Id. ¶¶ 93-94.) The Court also ordered that the Report and Curley’s counsel’s
objections to it would remain sealed. (ECF No. 6.)

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5. December 8, 2017 Executive Session
On December 7, 2017, Defendants’ outside counsel notified Curley that at the December
8 Executive Session: (1) the Investigator would give a presentation; (2) Curley would have thirty
minutes to present comments, submissions, or statements “individually or through counsel”; and
(3) the other Freeholders would have thirty minutes to present their comments, submissions, and
statements. (ECF No. 7-1, Ex. E at 10.) At the Executive Session, Curley elected not to speak, and
his counsel spoke on his behalf. (ECF No. 7 ¶ 97.) DiMaso attended the Executive Session and the
deliberations after all presentations. (Id. ¶ 101.) Also present were Arnone, Rich, and Burry. (Id. ¶
102.)
6. December 8, 2017 Public Session
After deliberating at the Executive Session, the Freeholders conducted the Public Session.
(Id. ¶ 103.) At the Public Session, the Board took public comment, voted on, and approved the
following resolutions: (1) to update, expand, and reinforce the Monmouth County policy on
prohibiting workplace discrimination and harassment; and (2) to censure Curley. (Id. ¶¶ 81, 106,
117.) The resolution to censure Curley expresses disapproval of his remarks but imposes no
punishment on him. (ECF No. 7-1, Ex. F at 13-21.)
At the Public Session, Defendants allegedly read the Censure Resolution of Curley, which
directly quoted and paraphrased the Report, “notwithstanding the Court’s order that the Report
remain under seal.” (ECF No. 7 ¶¶ 107-08.) During the reading of the Censure Resolution, “a
member of the public interrupted Defendants’ counsel to inform the Freeholders that quoting
passages from the Report violate[d] the Court’s sealing order.” (Id. ¶ 109.) When Curley’s counsel
was permitted to speak, he also objected to the reading of the sealed Report to the public. (Id. ¶
112.)
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7. Monmouth County Republican Committee Email
On December 13, 2017, the Chairman of the Monmouth County Republican Committee
sent an email to the Monmouth County Republic Headquarters, quoting from the Report and
criticizing Curley “for pursuing his rights in courts and for hiring a ‘Democratic State committee
lawyer.’” (Id. ¶¶ 118-19.) The email concluded that Curley “should not run for re-election on the
Republican line in 2018.” (Id. ¶ 120.)
B.

Procedural Background

On December 1, 2017, Curley filed an initial Complaint against Defendants with an Order
to Show Cause seeking Temporary Restraints and a Preliminary Injunction. (ECF No. 1.) On
December 4, 2017, Curley withdrew his Application for Temporary Restraints, and the Court, with
all counsels’ consent, ordered the Report sealed. (ECF No. 4.) On December 22, 2017, Curley filed
an Amended Complaint, alleging twelve counts against Defendants in their individual and official
capacities: (1) two violations of his due process under the Fourteenth Amendment pursuant to 42
U.S.C. § 1983; (2) two violations of his due process under Article I, Paragraph I of the New Jersey
Constitution; (3) declaratory judgment; (4) retaliation for protected free speech under the First
Amendment, pursuant to § 1983; (5) retaliation for protected free speech under Article I, Section
I, Paragraph 6 of the New Jersey State Constitution; (6) a violation of the Speech or Debate Clause
of Article I, Section 6, Clause 1 of the U.S. Constitution; (7) a violation of the Speech or Debate
Clause of Article IV, Section 4, Paragraph 9 of the New Jersey State Constitution; (8) Conspiracy
to Violate Constitutional Rights, § 1985; (9) violation of local government ethics law; and (10)
defamation. (See ECF No. 7.)
On December 22, 2017, Curley filed a Motion to hold Defendants in contempt for violating
the Court’s December 4, 2017 Order to keep the Report sealed (“Order to Seal”). (ECF No. 8.) On
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February 1, 2018, the County Defendants filed a Motion to Dismiss for Lack of Jurisdiction based
on immunity and Motion to Dismiss for failure to state a claim. (ECF No. 26.) On February 15,
2017, Fitzgerald and O’Connor filed a Motion to Dismiss. (ECF No. 32.) All motions are opposed.
(ECF Nos. 21 and 44.) On April 30, 2018, the Court heard Oral Argument on both motions and
provided the parties with an opportunity to file supplemental summation briefs after the argument.
On May 7, 2018, Defendants submitted supplemental briefs. (ECF Nos. 51 and 52.) These were
taken into consideration below. 2
II.

LEGAL STANDARDS
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) mandates the dismissal of a case for “lack of

subject-matter jurisdiction.” An assertion of Eleventh Amendment immunity is a challenge to a
district court’s subject-matter jurisdiction. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,
693 n.2 (3d Cir. 1996) (“[T]he Eleventh Amendment is a jurisdictional bar which deprives federal
courts of subject matter jurisdiction.”) (citing Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89, 98-100 (1984)). Typically, when jurisdiction is challenged pursuant to Rule 12(b)(1), the
plaintiff bears the burden of persuading the court that subject-matter jurisdiction exists. Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). However, because “Eleventh
Amendment immunity can be expressly waived by a party, or forfeited through non-assertion, it
does not implicate federal subject matter jurisdiction in the ordinary sense,” and therefore, a party
asserting Eleventh Amendment immunity bears the burden of proving its applicability. Christy v.

2

Notably, after Oral Argument, Curley announced he would seek re-election to a fourth term as
an independent.
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Pa. Turnpike Comm., 54 F.3d 1140, 1144 (3d Cir. 1994); see also Carter v. City of Phila., 181
F.3d 339, 347 (3d Cir. 1999).
When evaluating a Rule 12(b)(1) motion to dismiss, a court must first determine whether
the motion attacks the complaint as deficient on its face, or whether the motion attacks the
existence of subject-matter jurisdiction in fact, apart from any pleadings. Mortensen v. First Fed.
Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). If the motion consists of a facial attack, the
court “must accept the complaint’s allegations as true,” Turicentro v. Am. Airlines, 303 F.3d 293,
300 n.4 (3d Cir. 2002), and “must only consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most favorable to the plaintiff,” Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891).
However, if the motion involves a factual attack, “the court may consider evidence outside the
pleadings.” Gould, 220 F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir.
1997)). Here, the Motion to Dismiss for lack of jurisdiction is a facial attack, because the
Defendants assert they are immune from Curley’s claims as pled. Therefore, on this question of
immunity, the Court’s review is limited to the allegations in the Complaint, which the Court must
accept as true and view in the light most favorable to Curley.
B. Federal Rule of Civil Procedure 12(b)(6)
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips, 515 F.3d at
228. “[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.”
Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). However, the plaintiff’s “obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
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recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S.
265, 286 (1986)). A court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the complaint
are true, those “[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when
the pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (quoting Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (quoting Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
While as a general rule, a court may not consider anything beyond the four corners of the
complaint on a motion to dismiss pursuant to 12(b)(6), the Third Circuit has held “a court may
consider certain narrowly defined types of material without converting the motion to dismiss [to
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one for summary judgment pursuant under Rule 56].” In re Rockefeller Ctr. Props. Sec. Litig., 184
F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “‘document integral to or
explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d at
1426.
C. Contempt
“Courts have inherent power to hold parties in civil contempt in order to enforce
compliance with any order of the court or to compensate for losses or damages.” U.S. v. Ciampitti,
669 F. Supp. 684, 687 (D.N.J. 1987) (citing McComb v. Jacksonville Paper Co., 336 U.S. 187
(1949)). The Court also has the authority to impose sanctions “if a party or its attorney . . . fails to
obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C). Rule 16(f)(2) further allows:
Instead of or in addition to any other sanction, the court must order
the party, its attorney, or both to pay the reasonable expenses—
including attorney’s fees—incurred because of any noncompliance
with this rule, unless the noncompliance was substantially justified
or other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 16(f)(2). “To prove civil contempt the court must find that (1) a valid court order
existed, (2) the defendant had knowledge of the order, and (3) the defendant disobeyed the order.”
John T. ex rel. Paul T. v. Delaware Cty. Intermediate Unit, 318 F.3d 545, 552 (3d Cir. 2003)
(citation omitted).
III.

DECISION
A.

Subject Matter Jurisdiction

The County Defendants argue this Court lacks subject matter jurisdiction because Curley’s
claims present non-justiciable political questions. (ECF No. 26-1 at 12-17.) Specifically, the
County Defendants argue “the political question doctrine excludes from judicial review those

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controversies which revolve around policy choices and value determinations reserved for the
legislative and executive branches of government.” (Id. at 14.) The County Defendants argue:
First, Freeholder Curley’s lawsuit inextricably relates to the
County Freeholder’s discretionary judgment in how best to respond
to an internal work-place complaint against a policymaking official.
Second, Freeholder Curley’s claims lack judicially
discoverable and manageable standards for resolving the issue, as
the entirety of this case relates to creating, updating, and changing
internal policies and procedures in the County workplace in relation
to high-ranking policymakers; and how the County Freeholders are
responsible for not only implementing, but also complying with
same.
....
Finally, it is impossible for the Court to resolve this case or
grant Freeholder Curley his requested relief without expressing a
lack of respect for the County Freeholders. Finding the censure
improper would require an invasion into the Freeholder Defendants
[’] internal legislative proceedings.
(Id. at 14, 16.)
Curley argues “[b]ecause this case involves a challenge to a local legislative body and not
a coordinate branch of the Federal Government, the political question doctrine standards are
plainly not met.” (ECF No. 43 at 11.) The Court agrees.
“The political question doctrine like standing, mootness and ripeness places constitutional
and prudential limits on the power of the federal courts to adjudicate certain kinds of claims.” In
re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d 370, 374 (D.N.J. 2001).
“The political question doctrine is ‘primarily a function of the separation of powers[,]’” where
“[t]he judiciary properly refrains from deciding controversies that the Constitution textually
commits to another political branch, as wells [sic] as cases that lack judicially manageable
standards.” McMahon v. Gen. Dynamics Corp., 933 F. Supp. 2d 682, 694 (D.N.J. 2013). Claims
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that implicate the government’s foreign policy may pose political questions. In re Nazi Era Cases
Against German Defendants Litig., 129 F. Supp. 2d at 374 (citing U.S. Const. art. II, § 2).
“Notwithstanding ample litigation, the Supreme Court has only rarely found that a political
question bars its adjudication of an issue.” McMahon, 933 F. Supp. 2d at 694. Indeed, “the
application of the political question doctrine is not absolute.” In re Nazi Era Cases Against German
Defendants Litig., 129 F. Supp. 2d at 374. In fact, “[a] question presented to this Court for decision
is properly deemed political when its resolution is committed by the Constitution to a branch of
the Federal Government other than this Court.” Elrod v. Burns, 427 U.S. 347, 351 (1976).
Therefore, “it is the relationship between the judiciary and the coordinate branches of the Federal
Government, and not the federal judiciary’s relationship to the States, which gives rise to the
‘political question.’” Id. (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)); Larsen v. Senate of
Com. of Pa., 152 F.3d 240, 246 (3d Cir. 1998). Because this case involves challenges to a local
state legislative body and not a branch of the Federal Government, the political question doctrine
does not apply. Accordingly, the County Defendants’ Motion to Dismiss on this ground is
DENIED.
B.

The Speech or Debate Clause

Defendants argue they are entitled to immunity under the Speech or Debate Clause of
Article 1 Section 6 of the United States Constitution for the investigation into Curley’s conduct
and the Censure Resolution because they are elected officials or the staff of elected officials. (ECF
No. 26-1 at 18 and ECF No. 33 at 29.) Curley argues the Speech or Debate Clause does not
immunize Defendants’ conduct because it is outside the legislative process. (ECF No. 43 at 2527.)

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The Speech or Debate Clause provides: “The Senators and Representatives . . . for any
Speech or Debate in either House . . . shall not be questioned in any other Place.” U.S. Const., art.
I, § 6, cl. 1. It affords absolute immunity to state legislators for their legislative activities.
Youngblood v. DeWeese, 352 F.3d 836, 839 (3d Cir. 2003), as amended (Feb. 11, 2004). “[L]ocal
legislators, like federal and state legislators, are absolutely immune from liability for their
legislative activities.” In re Montgomery Cty., 215 F.3d 367, 376 (3d Cir. 2000).
“To be legislative, however, the act in question must be both substantively and procedurally
legislative in nature.” Id. “An act is substantively legislative if it involves policy-making of a
general purpose or line-drawing.” Id. (citation omitted). “It is procedurally legislative if it is
undertaken by means of established legislative procedures.” Id. (citation omitted). The Supreme
Court:
has defined the sphere of legitimate legislative activities to include
activities that are “an integral part of the deliberative and
communicative processes by which Members participate in
committee and House proceedings with respect to the consideration
and passage or rejection of proposed legislation or with respect to
other matter which the Constitution places within the jurisdiction of
either House.”
Youngblood, 352 F.3d at 840 (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)). The
Court has found the following are considered legislative: voting for a resolution, Powell v.
McCormack, 395 U.S. 486, 504–05 (1969); subpoenaing and seizing property and records for a
committee hearing, Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 507 (1975) and
Dombrowski v. Eastland, 387 U.S. 82, 84–85 (1967); preparing investigative reports, Doe v.
McMillan, 412 U.S. 306, 313 (1973); addressing a congressional committee, Gravel, 408 U.S. at
616; and speaking before the legislative body in session, Johnson, 383 U.S. at 184–85.

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However, the Speech or Debate Clause does not encompass “everything ‘related of the due
functioning of the legislative process.’” Youngblood, 352 F.3d at 840 (quoting United States v.
Brewster, 408 U.S. 501, 513 (1972)). “Immunity does not extend to acts that are casually or
incidentally related to legislative affairs but not a part of the legislative process itself.” Id. (citation
omitted). The Third Circuit has denied immunity where an employee was fired for mis- and
malfeasance because it was a “personnel decision that does not involve general policy making”
and therefore, was not legislative in substance. In re Montgomery Cty., 215 F.3d at 377.
Here, the County Defendants admit this was not a legislative act. (ECF No. 26-1 at 27.) In
their Moving Brief they argue Curley has not sufficiently pled a Due Process claim because the
Censure Resolution “is merely an expression of the Freeholder Defendants’ opinion[,] . . . “[w]hile
an ordinance is a ‘distinctively [] legislative act,’ a resolution ‘is simply an expression of opinion
or mind concerning some particular time or business coming within the legislative body’s official
cognizance.’” (Id.) Defendants cannot have it both ways. Because they admit the Censure
Resolution was not a legislative act, the Court finds Defendants are not entitled to absolute
immunity under the Speech or Debate Clause.
C.

Constitutional Claims
1.

Due Process Claims (Counts 1-4)

In Counts 1 through 4 of the Amended Complaint, Curley alleges his due process rights
were violated under the Fourteenth Amendment, the New Jersey Constitution and/or the New
Jersey Civil Rights Act (“NJRCA”). (ECF No. 7 at 22-27.) Specifically, Curley alleges he was
deprived of a protected property interest because Defendants deprived him of unrestricted access
to his office, denied him access to his aide for a period of two days, censured him without due
process, and denied him of a protected interest in his reputation without due process. (Id.)
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The Court finds Curley has failed to sufficiently allege Defendants deprived him of any
property interest or right protected by the Due Process Clause. The Fourteenth Amendment of the
Constitution prohibits “a state from depriving persons of life, liberty, or property without due
process of law.” U.S. Const. amend. XIV, § 1. “When a plaintiff sues under 42 U.S.C. § 1983 for
a state actor’s failure to provide procedural due process” she must demonstrate she had a life,
liberty, or property interest and that the procedures available to her did not provide her with “due
process of law.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (emphasis added). In evaluating
a procedural due process claim, the Court must first determine “whether the asserted individual
interests are encompassed within the [F]ourteenth [A]mendment’s protection of life, liberty, or
property.” Id. (citation omitted); accord Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (citation
omitted). Property interests are “created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents
of State Coll. v. Roth, 408 U.S. 564, 577 (1972). “To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id.
Once a court determines that the interest asserted is protected by the Due Process Clause,
the question then becomes what process is due to protect it. Id. (citing Morrissey v. Brewer, 408
U.S. 471, 481 (1972)). “This principle requires some kind of a hearing prior to the discharge of an
employee who has a constitutionally protected property interest in his employment.” Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citations omitted). The Constitution requires
the opportunity to be “granted at a meaningful time and in a meaningful manner.” Boddie v.
Connecticut, 401 U.S. 371, 378 (1971) (citation omitted).
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“[P]ersonnel decisions short of termination do not constitute a deprivation of a property
interest under the due process clause of the [F]ourteenth [A]mendment.” Ferraro v. City of Long
Branch, 23 F.3d 803, 807 (3d Cir. 1994). In Ferraro, the Third Circuit found there was no
constitutional violation where a complaint does not allege: (1) an employee was “discharged
actually or constructively, [(2)] his salary and benefits were not affected adversely . . . , [3] [he
was] not strip[ped] of his job title, and [4] he was not transferred to a different agency.” Id.
Moreover, courts have found elected officials “hold[] no property right in [their] elected positions
or in [their] ability to carry out the functions of that position.” Dillaplain v. Xenia Cmty. Sch. Bd.
of Educ., No. 13-104, 2013 WL 5724512, at *6 (S.D. Ohio Oct. 21, 2013). The Supreme Court has
established that “an unlawful denial by state action of a right to state political office is not a denial
of a right of property or liberty secured by the due process clause.” Snowden v. Hughes, 321 U.S.
1, 7 (1944)); Biener v. Calio, 361 F.3d 206, 216 (3d Cir. 2004). “[P]ublic offices are mere agencies
or trusts, and not property as such and . . . the nature of the relation of a public officer to the public
is inconsistent with either a property or a contract right.” Carson v. Vernon Twp., No. 09-6126,
2010 WL 2985849, at *12 (D.N.J. July 21, 2010) (citations omitted).
In Counts 1 and 2 of his Amended Complaint, Curley does not allege Defendants
discharged him actually or constructively, deprived him of his salary, excluded him from Board
meetings, or prevented him from voting on Board matters. Instead, he merely complains he was
deprived of unrestricted access to his office and access to his aide for two days, which he alleges
he is entitled to based on “custom and tradition.” (ECF No. 7 ¶¶ 125, 134.) These alleged interests
do not constitute deprivations of property interest under the Fourteenth Amendment. Indeed,
Curley concedes he was able to perform his official duties despite his restrictions. In fact, on

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November 30, 2017, Curley worked at the Hall of Records “fulfilling his duties as an elected
Freeholder.” (ECF No. 7 ¶ 86.)
Property interests are “created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents
of State Coll., 408 U.S. at 577. “To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more than a unilateral expectation of it.
He must, instead, have a legitimate claim of entitlement to it.” Id. Curley pleads no existing rules
or independent sources of law that secure these types of property interests. Accordingly, Curley
has failed to state a claim as to Counts 1 and 2. Accordingly, Counts 1 and 2 are DISMISSED.
Counts 3 and 4 of the Amended Complaint allege Defendants deprived Curley of a
constitutionally protected interest in his reputation without due process by providing the Report to
the Board and censuring him. The Third Circuit has held that “an individual does not have a
protected interest in reputation alone.” Thomas v. Indep. Twp., 463 F.3d 285, 297 (3d Cir. 2006).
“Rather, to make out a due process claim for deprivation of a liberty interest in reputation, a
plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest.”
Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). This is referred to as the “stigmaplus” test. Id. In the public employment context, the “stigma-plus” test has been applied to mean
that when an employer “creates and disseminates a false and defamatory impression about the
employee in connection with his termination,” it deprives the employee of a protected liberty
interest. Codd v. Velger, 429 U.S. 624, 628 (1977). The creation and dissemination of the false and
defamatory impression is the “stigma,” and the termination is the “plus.” Hill, 455 F.3d at 236. To
satisfy the “stigma” prong of the test, it must be alleged that the purportedly stigmatizing
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statements: (1) were made publicly and (2) were false. Dee v. Borough of Dunmore, 549 F.3d 225,
235 (3d Cir. 2008) (citation omitted).
Curley has alleged Defendants defamed him by accusing him of making sexually explicit
remarks. He alleges Defendants made these accusations publicly—in a Public Session. He further
alleges the statements were false. Therefore, his Amended Complaint adequately alleges the
“stigma” prong of the “stigma-plus” test. However, he has not satisfied the “plus” prong. That is,
putting aside the question of stigma, Curley has not shown deprivation of some additional right or
interest. Curley suggests he satisfies the “plus” requirement because “his chances of electoral
success” or running for re-election are harmed. (ECF No. 43 at 22.) Curley offers no case law to
support his contention that these allegations are sufficient, and Defendants counter that Curley has
failed to present evidence of any injury other than the perceived harm to his reputation. The Court
agrees.
In Hill, the Third Circuit concluded “that a public employee who is defamed in the course
of being terminated or constructively discharged satisfies the ‘stigma-plus’ test even if, as a matter
of state law, he lacks a property interest in the job he lost.” 455 F.3d at 238. However, 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. Moreover, the Court in Hill analyzed cases with factual scenarios more
lenient to plaintiffs than here that nonetheless did not satisfy the “plus” requirement. Id. (holding
that, in employment context, “plus” factor not met in cases where plaintiffs were suspended with
pay, reprimanded and disciplined but not suspended, had duties changed, or lost 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
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despite allegation that defendants characterized her as “disruptive and unprofessional” to the
detriment of her practice). Here, Curley’s only alleged harm is his speculation that his chances for
reelection may be harmed.
Application of New Jersey 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, 662 A.2d 367, 418-419 (N.J. 1995). The inquiry, however, remains
fact-intensive, id., and reputational harm must be more than de minimis. In re L.R., 3729 A.2d 463,
472 (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”). The cases on which Curley relies are distinguishable by the
interests and harm at stake.
In Grodjesk v. Jersey City Medical Center, the Court found the “censure by the [hospital’s]
executive committee [] unquestionably damaged plaintiffs’ reputation and their professional
standing as oral surgeons.” 343 A.2d 489, 500 (N.J. Super. Ct. Ch. Div. 1975). The plaintiffs were
censured by the executive committee of the medical-dental staff for “writing to agencies and
persons outside the hospital family before judgment was made by them or their peers and also for
use by them of patient records obtained improperly.” Id. at 411. The censure caused them to be
“injured in their business, reputation, profits and professional standing.” Id. In Poritz, the Court
repeated that a heightened sex offender designation “inflicts a greater stigma than that resulting
from the conviction for a sex offense, when there is no such classification” because one’s “liberty
interest is more significant” when “prior undisclosed criminal history and his new classification
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become [publicly] known.” 662 A.2d at 420. Curley, by contrast, presents no evidence of
endangered livelihood or societal ostracization. Indeed, he only speculates that his chances for
reelection may be harmed and fails to supply competent evidence of this. Danchuk v. Mayor &
Council of the Borough of Mount Arlington, No. 15- 2028, 2017 WL 3821469, at *5 (D.N.J. Aug.
31, 2017) (concluding that because the plaintiff presented “no evidence of endangered livelihood
or societal ostracization” and “only speculate[d] that her re-election [was] casually connected to
the Censure and fail[ed] to supply competent evidence of her diminished community standing”
she filed to plead she was deprived of due process). In fact, regardless of his alleged speculations,
he has decided to seek re-election to a fourth term as an independent. Reputational harm must be
more than de minimis. Id. Accordingly, Curley has failed to sufficiently plead he was deprived of
a constitutionally protected interest in his reputation without due process. Counts 3 and 4 are
DISMISSED.
2.

Qualified Immunity and First Amendment Retaliation Claims (Counts
6 and 7)

In Counts 5 and 6 of the Amended Complaint, Curley alleges Defendants violated his First
Amendment rights by retaliating against him for his “statements and conduct as a Freeholder
expressing his political views.” (ECF No. 7 ¶ 169.) Defendants argue Curley’s First Amendment
retaliation claims against them fail to properly state a claim, otherwise they are entitled to qualified
immunity as to those claims. (ECF No. 26-1 at 28 and ECF No. 33 at 34.) Curley argues he has
sufficiently alleged a violation of his First Amendment rights and therefore, Defendants are not
entitled to qualified immunity. (ECF No. 43 at 29.)
To determine whether a public official is entitled to qualified immunity, courts first
determine whether the official violated a constitutional right, and then ask whether the right was
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clearly established at the time of the violation. Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015)
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Third Circuit has interpreted the phrase
“clearly established” to mean “some but not precise factual correspondence” between relevant
precedents and the conduct at issue, and that “[a]lthough officials need not predict[t] the future
course of constitutional law, they are required to relate established law to analogous factual
settings.” Ryan v. Burlington Cty., 860 F.2d 1199, 1208–09 (3d Cir. 1988), cert. denied, 490 U.S.
1020 (1989) (quoting People of Three Mile Island v. Nuclear Regulatory Comm’rs, 747 F.2d 139,
144 (3d Cir. 1984)). The essential inquiry is whether a reasonable official in the defendant’s
position at the relevant time “could have believed, in light of clearly established law, that [his or
her] conduct comported with established legal standards.” Merkle v. Upper Dublin Sch. Dist., 211
F.3d 782, 797 (3d Cir. 2000) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726
(3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990)).
Qualified immunity affords government officials considerable protection from liability, as
it “protects all but the plainly incompetent or those who knowingly violate the law.” Saucier, 533
U.S. at 205 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). A plaintiff seeking to overcome
qualified immunity need not cite “a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011). “[Q]ualified immunity [is] defeated if an official ‘knew or reasonably should have known
that the action he took . . . would violate the constitutional rights of the [plaintiff], or if he took the
action with the malicious intention to cause a deprivation of constitutional rights or other injury.”
Harlow v. Fitzgerald, 457 U.S. 800, 815 (quoting Wood v. Strickland, 420 U.S. 308, 322 (1975)).
To determine whether a public official is entitled to qualified immunity, courts first
determine whether the official violated a constitutional right. Therefore, the Court begins its
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analysis by looking to whether a constitutional right was violated. To plead a claim for First
Amendment retaliation, a plaintiff must allege:
(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.
Willson v. Yerke, 604 F. App’x 149, 151 (3d Cir. 2015) (citation omitted). “To be actionable as a
general matter, the alleged retaliatory conduct must have had more than a de minimis impact on
the plaintiff’s First Amendment rights.” Id. “Where the alleged misconduct relates to the
statements or action of elected officials, the threshold is particularly high.” Id.
In Bond v. Floyd, the Supreme Court observed “[t]he manifest function of the First
Amendment in a representative government requires that legislators be given the widest latitude
to express their views on issues of policy.” 385 U.S. 116, 135–36 (1966). The Third Circuit in
Werkheiser v. Pocono Township also found that “nothing in Bond . . . suggests the Court intended
for the First Amendment to guard against every form of political backlash that might arise out of
the everyday squabbles of hardball politics” and that “the First Amendment may well prohibit
retaliation against elected officials for speech pursuant to their official duties only when the
retaliation interferes with their ability to adequately perform their elected duties.” 780 F.3d 172,
181 (3d Cir. 2015); see also Camacho v. Brandon, 317 F.3d 153, 166 (2d Cir. 2003) (Walker, J.,
concurring) (“[C]ourts should intervene in only the most severe cases of legislative retaliation for
the exercise of First Amendment rights, thereby allowing ample room for the hurly burly of
legislative decision making.”); cf. Monteiro v. City of Elizabeth, 436 F.3d 397 (3d Cir. 2006)
(finding sufficient evidence to support a First Amendment retaliation claim where the City Council
President had a Council member arrested and removed from a meeting for speaking out against
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the Council President). Courts have declined to find that verbal reprimands or defamatory remarks
adversely affect a plaintiff’s exercise of his First Amendment rights. Brennan v. Norton, 350 F.3d
399, 419 (3d Cir. 2003) (“[C]ourts have declined to find that an employer’s actions have adversely
affected an employee’s exercise of his First Amendment rights where the employer’s alleged
retaliatory acts were criticism, false accusations, or verbal reprimands.”).
The Court finds Curley has failed to sufficiently plead Defendants violated his First
Amendment rights. Curley does not set forth the specific political statements or any conduct that
is allegedly constitutionally protected, nor does he allege retaliatory action sufficient to deter a
person of ordinary firmness from exercising his constitutional rights. Curley argues his pleadings
are sufficient to deter a person of ordinary firmness from exercising his constitutional rights
because he pled limited access to his office, restricted access to his aide for two days, and that he
was censured. The Court does not agree. As stated in Werkheiser “the First Amendment may well
prohibit retaliation against elected officials for speech pursuant to their official duties only when
the retaliation interferes with their ability to adequately perform their elected duties.” 780 F.3d at
181 (3d Cir. 2015) (emphasis added). Curley admits in his Amended Complaint he worked at the
Hall of Records during his alleged restricted access “fulfilling his duties as an elected Freeholder.”
(Id. ¶ 86.) Moreover, censure resolutions expressing disapproval with no punishment are de
minimis and are not constitutional violations. See Danchuk v. Mayor & Council of the Borough of
Mount Arlington, No. 15- 2028, 2017 WL 3821469, at *6 (D.N.J. Aug. 31, 2017) (noting a censure
“is mere [a] de minimis criticism, accusation[], or reprimand insufficient to deter a person of
ordinary firmness from exercising constitutional rights and, hence, does not run afoul [of] federal
and state rights to free speech.”); Page v. Braker, No. 06-2067, 2007 WL 432980, at *3 (D.N.J.
Jan. 31, 2007) (finding the censure resolution “was de minimis and did not rise to the level
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necessary to constitute a First Amendment violation” because it was a “mere showing of
disapproval, expressed by a councilman’s colleagues, and lacking any real force or punishment”).
Accordingly, Counts 6 and 7 of Curley’s Amended Complaint are DISMISSED for failure to state
a claim and because Defendants are entitled to qualified immunity.
3. Speech or Debate Clause (Counts 8 and 9)
Count 8 and 9 of Curley’s Amended Complaint alleges Defendants violated his rights under
the respective Speech or Debate Clauses of the United Stated and New Jersey Constitution. (ECF
No. 7 at 30-32.) Curley argues the Speech or Debate Clause precluded the Censure Resolution.
(Id.) Defendants contend the Speech or Debate Clause does not confer on a plaintiff a private right
of action for retaliation based on protected speech. (ECF No. 26-1 at 21 and ECF No. 33 at 35.)
Moreover, they note they have not sued Curley. (ECF No. 26-1 at 21 and ECF No. 33 at 34.)
Curley argues “he does not seek to create a private cause of action based on the Speech or Debate
Clause, but rather seeks declaratory and injunctive relief regarding the attempt to use his clearly
immunized legislative speech as a basis for punitive measures, in plain violation of that provision.”
(ECF No. 43 at 32.)
Defendants cite no authority for their proposition that the Speech or Debate Clause does
not confer on a plaintiff a private right of action. Nonetheless, the Court finds it lacks jurisdiction
over Counts 8 and 9 because there is no Article III case or controversy. “Article III of the
Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Lance v.
Coffman, 549 U.S. 437, 439 (2007). “Standing to sue is a doctrine rooted in the traditional
understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
“The standing inquiry focuses on whether the party invoking jurisdiction had the requisite stake in

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the outcome when the suit was filed.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 360 (3d
Cir. 2014) (citing Davis v. FEC, 554 U.S. 724, 734 (2008)).
Article III “standing consists of three elements.” Spokeo, 136 S. Ct. at 1547 (quoting Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). To establish standing, “[t]he plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Id. “The plaintiff, as the
party invoking federal jurisdiction, bears the burden of establishing these elements.” Id. (citing
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).
As in Spokeo, “[t]his case primarily concerns injury in fact, the ‘[f]irst and foremost’ of
standing’s three elements.” Id. (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 103
(1998)). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of
a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be
‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id. (citations
omitted). “Particularization is necessary to establish injury in fact, but it is not sufficient. An injury
in fact must also be ‘concrete.’” Id. “A ‘concrete’ injury must be ‘de facto’; that is, it must actually
exist.” Id. (explaining that “[w]hen we have used the adjective ‘concrete,’ we have meant to convey
the usual meaning of the term – ‘real,’ and not ‘abstract’”). “Concreteness, therefore, is quite
different from particularization.” Id.
In McLeod, thirty-three plaintiffs who signed releases requested declaratory judgment that
the releases were not knowing and voluntary, even though the employer had not threatened or
attempted to enforce the ADEA waiver. McLeod, 856 F.3d at 1163, 1166-67. The court held:

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An Article III case or controversy may exist where a private party
threatens an enforcement action that would cause an imminent
injury. Here, though, the former employees do not plead that
General Mills threatens any enforcement of the ADEA claim
waiver, let alone enforcement that would cause them imminent
injury. Instead, they request a declaration of their rights under a
hypothetical set of facts. They want to know their legal rights if, in
the future, General Mills asserts that the waivers of their substantive
ADEA rights were “knowing and voluntary” under § 626(f)(3).
Id. at 1166. The court further concluded “[n]o Article III case or controversy arises when plaintiffs
seek ‘a declaratory judgment as to the validity of a defense’ that a defendant ‘may, or may not,
raise’ in a future proceeding.” Id. at 1167 (quoting Calderon v. Ashmus, 523 U.S. 740, 747 (1998)).
Defendants have not sued Curley for the alleged speech that is protected by the Speech or Debate
Clause. Accordingly, Defendants’ motions to dismiss Counts 8 and 9 are GRANTED.
4.

Conspiracy to Violate Constitutional Rights (Count 10)

Count 10 of Curley’s Amended Complaint alleges “Defendants conspired to violate [his]
rights secured by the First and Fourteen Amendments to the Unites States Constitution.” (ECF No.
7 ¶ 186.) Fitzgerald and O’Connor argue “[b]ecause plaintiff fails to allege that [D]efendants
‘conspired’ against him because of protected status, such as race, and alleges a conspiracy among
members of the same local government, Count Ten should be dismissed.” (ECF No. 33 at 35.) The
County Defendants argue Curley fails to state a cognizable claim for civil conspiracy because
Curley:
has not identified the conspirators by name or even alleged facts
[from] which one could infer the existence of a conspiratorial
agreement. Nor has [Curley] alleged specific facts: (1) sufficient to
support a conspiracy motivated by a class-based discriminatory
animus i.e. discriminatory intent; (2) showing that any of these
Defendants agreed to violate Freeholder Curley’s rights through
witness intimidation in any federal and/or state proceeding or
investigation; (3) of overt acts committed by the purported coconspirators in furtherance of the conspiracy; and/or (4) showing
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actual knowledge by any of the Defendants of the illegal conspiracy
to commit a civil rights violation prior to it occurring.
(ECF No. 26-1 at 34.) The County Defendants further argue Curley cannot maintain a conspiracy
claim against them because they are considered a single entity that cannot conspire with itself. (Id.
at 35.) Curley alleges he accidently captioned Count 10 as a conspiracy under 42 U.S.C. § 1985,
but actually pled a general civil conspiracy claim under New Jersey law and requests the Court to
interpret the claim as such or provide him a chance to replead. (ECF No. 43 at 30.)
The Court finds Curley intended to plead a conspiracy claim under 42 U.S.C. § 1985
because it is not only mentioned in the caption of Count 10 but Count 10 also alleges “Defendants
conspired to violate [his] rights secured by the First and Fourteen Amendment to the United States
Constitution.” (ECF No. 7 ¶ 186 (emphasis added).) Because Curley admits he has not properly
pled a conspiracy claim under 42 U.S.C. § 1985, it is DISMISSED. To the extent Curley intended
to plead a general civil conspiracy claim under New Jersey law, he may file a second amended
complaint to reflect that.
D.

Local Government Ethics Law N.J. Stat. Ann. § 40A:9-22.1, et. seq. (Count 11)

Count 11 of Curley’s Amended Complaint alleges DiMaso, Arnone, Rich, and Burry—the
remaining Freeholders excluding himself—violated the Local Government Ethics Law, N.J. Stat.
Ann. § 40A:9-22.1 to –22.25 (the “Ethics Law”) by participating in the Executive Session and
making public comment on and voting for the Censure Resolution at the Public Session. (ECF No.
7 ¶¶ 190-204.) The County Defendants argue the Ethics Law does not apply to this matter because
Curley alleges the Freeholders have a “personal interest” in the Censure Resolution for no other
reason than that they were “mentioned” in the Report. (ECF No. 26-1 at 41.) Moreover, they argue
Curley “provides no foundation, basis or support in fact or law to claim the Freeholders’ interest
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in the subject Censure Resolution was not one shared with the common members of the public.”
(Id. at 42.) Curley argues he has properly alleged DiMaso had a direct personal interest and the
remaining Freeholders, who were also mentioned in the Report, have an indirect personal interest.
(ECF No. 43 at 38.)
The Ethics Law sets minimum ethical standards by which local government officers must
act. Specifically, N.J. Stat. Ann. § 40A:9-22.5 states: “No local government officer or employee
or member of his immediate family shall have an interest in a business organization or engage in
any business, transaction, or professional activity, which is in substantial conflict with the proper
discharge of his duties in the public interest.” “The determination [of] whether a particular interest
is sufficient to disqualify a board member is necessarily factual in nature and depends upon the
circumstances in each case.” Gunthner v. Planning Bd. of Borough of Bay Head, 762 A.2d 710,
714 (N.J. Super. Ct. Law. Div. 2000).
“An actual conflict of interest is not the decisive factor, nor is ‘whether the public servant
succumbs to the temptation,’ but rather whether there is a potential for conflict.” Wyzykowski v.
Rizas, 626 A.2d 406, 413 (N.J. 1993) (citations omitted). “A conflicting interest arises when the
public official has an interest not shared in common with the other members of the public.” Id. In
other words, “[t]here cannot be a conflict of interest where there do not exist, realistically,
contradictory desires tugging the official in opposite directions.” LaRue v. Township of East
Brunswick, 172 A.2d 691, 698 (N.J. Super. Ct. App. Div. 1961).
The Court agrees with the County Defendants that Curley has not sufficiently pled they
violated the Ethics Law. Indeed, Curley “provides no foundation, basis or support in fact or law to
claim the Freeholders’ interest in the subject Censure Resolution was one not shared with the
common members of the public.” (ECF No. 26-1 at 42.) Curley has failed to plead there are
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“desires tugging the official[s] in opposite directions.” LaRue, 172 A.2d at 698. Accordingly,
County Defendants Motion to Dismiss Count 11 is GRANTED.
E.

Defamation (Count 12)

Count 12 of Curley’s Amended Complaint alleges “[t]he Report contains numerous false
and unsubstantiated allegations against [Curley].” (ECF No. 7 ¶ 207.) Defendants argue Curley’s
defamation claim is premature because he did not wait six months to file the claim from the date
notice of claim was received. (ECF No. 26-1 at 39 and ECF No. 33 at 35.) In the alternative, they
argue Curley fails to state a claim for defamation. (ECF No. 26-1 at 36-39 and ECF No. 33 at 3640.) Curley admits he did not comply with the New Jersey Tort Claims Act (“TCA”) six-month
waiting period prior to filing his defamation claim. (ECF No. 43 at 36-38.) Nevertheless, Curley
argues “New Jersey courts have recognized a practical exception to that requirement when the
claimant substantially complied with the notice requirement, there would be no prejudice to the
state entity, and the ‘interests of efficiency and judicial economy’ counsel against dismissal.” (ECF
No. 43 at 36 (quoting Guerrero v. City of Newark, 522 A.2d 1036, 1041 (N.J. Super. Ct. App. Div.
1987).)
The TCA states that “[n]o action shall be brought against a public entity or public employee
under [the TCA] unless the claim upon which it is based shall have been presented in accordance
with the procedures set forth in this Chapter.” N.J. Stat. Ann. § 59:8–3. Specifically, a claimant
must sign and file a notice of tort claim (“Notice of Claim”) with the public entity within 90 days
from accrual of the cause of action. Id. § 59:8–8.2 After the Notice of Claim is filed, a plaintiff
must wait six months before filing suit against the public entity or employee in an appropriate
court. Id. (emphasis added). Curley admits he has not complied with the six-month waiting period
(Curley filed his Notice of Claim on December 22, 2017, therefore the six-month period expires
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on June 22, 2018) and because keeping the claim would not promote efficiency or save judicial
resources, since the Court has dismissed the rest of Curley’s claims and provided him with
opportunity to replead by August 24, 2018 (after the six-month period), Defendants’ motions to
dismiss Curley’s defamation claim are GRANTED.
F.

Declaratory Judgment (Count 5)

Count 5 of Curley’s Amended Complaint requests declaratory relief. (ECF No. 7 ¶¶ 15367.) Specifically, it “seeks a declaration that Defendants’ ‘investigation’ was ultra vires because it
was taken without an authorization of the Board.” (ECF No. 43 at 11.)
The Declaratory Judgment Act provides that a Court “may declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief is or could
be sought.” 28 U.S.C. § 2201(a). The express language of the declaratory judgment statute and
fundamental principles of standing under Article III of the Constitution limit this power to actions
that present a “case or controversy.” Cutaiar v. Marshall, 590 F.2d 523, 527 (3d Cir. 1979). The
“actual controversy” requirement refers to the case or controversy requirement of Article III. Teva
Pharm. USA, Inc. v. Novartis Pharm. Corp., 482 F.3d 1330, 1336 (3d Cir. 2007). In Teva
Pharmaceuticals, the Third Circuit stated that standing in the declaratory judgment context
requires:
that the dispute be “definite and concrete, touching the legal
relations of the parties having adverse legal interests”; and that it be
“real and substantial” and “admi[t] of specific relief through a
decree of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts.”
Id. (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)). The court noted,
“[b]asically, the question in each case is whether the facts alleged, under all the circumstances,
show that there is a substantial controversy, between the parties having adverse legal interests, of
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sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. (citation
omitted).
“The statute creates a remedy only; it does not create a basis of jurisdiction, and does not
authorize the rendering of advisory opinions.” Cutaiar, 590 F.2d at 527. Moreover, “a party
requesting a declaratory judgment must allege facts from which it appears there is a substantial
likelihood that he will suffer injury in the future.” Lattaker v. Rendell, 269 F. App’x 230, 233 (3d
Cir. 2008) (internal quotations omitted). Because the Court finds Curley’s Amended Complaint
fails to sufficiently plead any cause of action, much less allege that there is “a substantial likelihood
that [he] will suffer injury in the future,” id. at 233, Curley’s declaratory judgment claim (Count
5) is DISMISSED.
G.

Contempt Motion

Curley argues this Court should hold Defendants in contempt or issue sanctions against
them because they directly quoted and paraphrased from the sealed Report in a public session
meeting on December 4, 2017. (ECF No. 9.) Defendants argue: (1) no valid court order existed;
(2) they have absolute immunity under the Speech or Debate Clause for the Censure Resolution;
(3) that Curley’s interpretation of the Order restricts their First Amendment rights to speak on
matter of policy and public concern; (4) Curley did not comply with Local Civil Rule 5.3 and thus
cannot maintain an action for contempt; and (5) that Curley comes to this Court with unclean
hands. (ECF No. 24.) At Oral Argument and in their Supplemental Summations Brief, Fitzgerald
and O’Connor argue they should not be held in contempt or subject to sanctions because they did
not disclose the Report or make any public statement that quoted the Report at the public session.
(ECF No. 51 at 2.) “Their mere presence at the December 8, 2017 public session at which the

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Board of Chosen Freeholders passed the censure resolution and read it aloud could not establish
contempt even if a binding and enforceable sealing order was in place.” (Id.)
The Court has already found Defendants are not entitled to absolute immunity under the
Speech or Debate Clause for the Censure Resolution. Therefore, that argument is without merit.
As to Defendants’ second argument—that the Order restricts their First Amendment rights—such
argument cannot be challenged in a contempt proceeding. Roe v. Operation Rescue, 919 F.2d 857,
871 (3d Cir. 1990) (finding a “right to free speech does not immunize [one] from liability for
engaging in proscribed conduct. Insofar as [the defendant] asserts that the TRO was an
unreasonable time, place, and manner restriction on his speech, the validity of the order may not
be collaterally challenged in a contempt proceeding for violating the order”); Solis v. Koresko, No.
09-988, 2016 WL 4536438, at *6 (E.D. Pa. Aug. 31, 2016), aff’d sub nom., Sec’y United States
Dep’t of Labor v. Koresko, No. 16-3806, 2018 WL 1446397 (3d Cir. Mar. 23, 2018) (“A
fundamental principle of the legal system is that all orders and judgments of courts must be
complied with promptly. If a person to whom a judge directs an order believes that order is
incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order
pending appeal. A private determination that an order is incorrect, or even unconstitutional, may
still result in contempt even if [that person’s] private determination is later proven correct in the
courts.”) (citations omitted). As such, this argument is also without merit.
Next, Defendants argue Curley comes to this Court seeking contempt with unclean hands
because he has also released portions of the Report. (ECF No. 24 at 24-25.) However, Defendants
point to no instance in which Curley revealed a portion of the Report after the Court ordered it
sealed to anyone other than this Court or the parties involved.

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Lastly, Defendants argue, absent compliance with Local Civil Rule 5.3 and Pansy, Curley
cannot maintain an action for contempt because the Order to Seal is not valid. (ECF No. 24 at 1617 (citing Pansy v. Boro of Stroudsberg, 23 F.3d 772 (3d Cir. 1994)).) It is well settled that there
is “a common law public right of access to judicial proceedings and records.” In re Cendant Corp.,
260 F.3d 183, 192 (3d Cir. 2001). Therefore, a party seeking to seal a document must demonstrate
“good cause” exits to overcome the presumption favoring a public right of access. Goldenberg v.
Indel, Inc., No. 09-5202, 2012 WL 15909, at *1 (D.N.J. Jan. 3, 2012) (citing Securimetrics, Inc. v.
Iridian Technologies, Inc., No. 03–4394, 2006 WL 827889, at *2 (D.N.J. Mar. 30, 2006)). “Good
cause is established on a showing that disclosure will work a clearly defined and serious injury to
the party seeking closure. The injury must be shown with specificity.” Pansy, 23 F.3d at 786 (citing
Publicker Indus. Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)). In Pansy, the Third Circuit
held “that whether an order of confidentiality is granted at the discovery stage or another stage of
litigation, including settlement, good cause must be demonstrated to justify the order.” Pansy, 23
F.3d at 786. Courts, not the parties, “should scrutinize every such agreement involving the sealing
of court papers and [determine] what, if any, of them are to be sealed, and it is only after very
careful, particularized review by the court that a Confidentiality Order may be executed.” Id.
Motions to seal are governed by Local Civil Rule 5.3. Under Local Civil Rule 5.3(c)(2), a
party moving to seal must describe with particularity: “(a) the nature of the materials or
proceedings at issue, (b) the legitimate private or public interests which warrant the relief sought,
(c) the clearly defined and serious injury that would result if the relief sought is not granted, and
(d) why a less restrictive alternative to the relief sought is not available.”
As a threshold matter, the parties agreed the Report would remain sealed, because if
released to the public would cause Curley serious injury. Sealing the Report was consented to by
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all parties in this litigation, including Defendants, on December 4, 2017, to protect Curley from
the disclosure of information that could harm his reputation or cause serious injury because it
contained sensitive information regarding a sexual harassment investigation. It contained not only
sensitive information about Curley but alleged victims. Indeed, after reading Curley’s brief for
Temporary Restraining Order and Motion for Preliminary Injunction and hearing the parties’
concerns during the in-person and telephone conference, the Court found sealing the Report was
necessary prior to ordering it to remain sealed on December 4. (ECF Nos. 4, 6, and 42.)
In addition, the Order to Seal is valid. As demonstrated above, the Court has jurisdiction
to hear this matter. Even though the Order was made orally on the record and confirmed in a minute
entry after the parties consented to it, it is valid. Malautea v. Suzuki Motor Co., 987 F.2d 1536,
1543 n.7 (11th Cir. 1993) (“Oral orders are just as binding on litigants as written orders; the
consequences for violating an oral order are the same as those for violating a written order.”).
Therefore, the Order is proper and binding.
At oral argument, the County Defendants further argued that the Order to Seal was limited
to “[p]ortions of the [R]eport that strictly were based on the investigation alone . . . [n]ot allegations
that led to the investigation.” (Draft Oral Arg. Tr. (ECF No. 49) 2:19-21.) However, the Order
does not make that distinction or provide for any exceptions. Instead, the Order unambiguously
states the Report is “to remain sealed.” (ECF No. 4.) Moreover, on the record the Court stated,
“[t]he [R]eport and rebuttal, Docket No. 2 on the docket, will remain sealed.” (ECF No. 42 4:1515.) Again, no exceptions were entered.
As a result, sanctions are appropriate in this matter against the County Defendants. The
Court will not impose sanctions against Fitzgerald and O’Connor because their mere presence at
the December 8 public session is not sufficient. However, the County Defendants do not deny they
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have revealed portions of the contents of the Report and cannot at this point undo what has been
done. Therefore, the Court will impose monetary sanctions. The Third Circuit has approved the
issuance of monetary sanctions for “the cost of bringing the violation to the attention of the court”
as part of the damages suffered by the prevailing party. Robin Woods Inc. v. Woods, 28 F.3d 396,
400 (3d Cir. 1994). Therefore, the Court finds attorneys’ fees are appropriate in this matter for the
cost it took to bring this violation to the Court’s attention. Curley shall file within 30 days of the
entry of the accompanying order an affidavit pursuant to Local Rule 54.2 to recover the requested
fees. Defendants will have fourteen days of receipt of the affidavit to respond. Accordingly,
Curley’s Motion for Contempt and Sanctions is GRANTED as to the County Defendants and
limited to attorneys’ fees.
IV. CONCLUSION
For the reasons set forth above: (1) Curley’s Motion to Hold Defendants in
contempt (ECF No. 8) is GRANTED as to the County Defendants, but limited to attorneys’ fees
and Curley shall file within 30 days of the entry of the accompanying order an affidavit pursuant
to Local Rule 54.2 in order to recover the requested fees; (2) the County Defendants’ Motion to
Dismiss for Lack of Jurisdiction is DENIED, but their Motion for Failure to State a Claim is
GRANTED (ECF No. 26); and (3) Fitzgerald and O’Connor’s Motion to Dismiss is GRANTED
(ECF No. 32). Curley may file an amended complaint addressing all deficiencies by no later than
August 24, 2018. Failure to file an amended complaint will result in the case being dismissed with
prejudice.

Date: July 25, 2018

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
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