Opinion
DOCKET NO. A-3617-11T2
04-19-2013
HASSAN H. SALAH, M.D., Plaintiff-Appellant, v. H. VICTOR GILSON, Ed.D, in his individual capacity, and CITY OF BRIDGETON BOARD OF EDUCATION, Defendants-Respondents.
The Vigilante Law Firm, P.C. and the Law Offices of Ralph Lamar, attorneys for appellant (Jacqueline M. Vigilante and Ralph Lamar, on the brief). Purcell, Mulcahy, O'Neill & Hawkins, LLC, attorneys for respondents (Alyssa K. Weinstein, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz, Ostrer and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-228-10.
The Vigilante Law Firm, P.C. and the Law Offices of Ralph Lamar, attorneys for appellant (Jacqueline M. Vigilante and Ralph Lamar, on the brief).
Purcell, Mulcahy, O'Neill & Hawkins, LLC, attorneys for respondents (Alyssa K. Weinstein, of counsel and on the brief). PER CURIAM
Plaintiff appeals from orders of the Law Division granting summary judgment to defendants, H. Victor Gilson and the City of Bridgeton Board of Education (Board), dismissing plaintiff's complaint alleging defendants violated his due process rights and free speech rights under the New Jersey Constitution, and that Gilson libeled, slandered and defamed him. We have considered the arguments raised in light of the motion record and applicable legal standards. We affirm.
I.
The motion record reveals that on February 28, 2009, plaintiff, a pediatrician, examined a three-year-old child at the request of the child's mother. The child was developmentally delayed and had been attending sessions at an "Early Childhood Center" run by the Board. Plaintiff, the child's regular pediatrician, examined the child's ear and found it swollen and red, with "deep marks that look like nail marks." Plaintiff asked the child's mother what had occurred, and the mother started to cry and said the "child has been coming back from school . . . hurt" every other day. She also said that she had complained to the school nurse, the teacher, the school's principal, and the bus driver, about her child, without avail.
Plaintiff concluded that the marks on the child's ear were "most likely due to an adult or . . . somebody whose nails are large." He added that he "didn't know whether it was really bullying by another student or was inflicted by a teacher or somebody who is older."
Because the examination took place on a Saturday, plaintiff could not call anyone at the school, and so he wrote a note on a prescription pad and gave it to the mother with instructions to "give that note on Monday to somebody." The hand-written note stated, "[U]nder my care, patient has physical, medical evidence of being abused/bullied in school. I urge the school and Board of Education to take their responsibility to make [the child] safe in school environment." That same day, plaintiff also reported the matter to the Division of Youth and Family Services (DYFS).
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, and renamed the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)).
The following week, the child's mother gave plaintiff's note to the school nurse, who then gave it to the school's principal. The principal forwarded the note to Gilson, who, at the time, was the superintendent of the Bridgeton school district. On March 5, 2009, Gilson responded to plaintiff with a letter, which stated:
I received a copy (see attached) of a very irresponsible prescription blank from you indicating your conclusion that one of our students, [the child], is being bullied in school and you infer the school is taking no action to protect him. I am considering filing a compl[ai]nt against you with theGilson sent copies of the letter to the school's nurses and doctor, some school administrators, a teacher and counsel.
New Jersey State Board of Medical Examiners because of your written allegation. Your accusation is offensive, irresponsible, and you seem to be pandering to the parent. Do not appease the parent at the expense of the school. How do you know [the child] is being bullied in school? How do you know who caused the marks on [the child]? How do you know where he was when they occurred? How do you know what the school has done to address issues involving [the child]? If you want to report your concerns to us, please do so. Do not arrive at conclusions about the school without the facts.
Attached is the Bridgeton Board of Education Policy 5131.911(a) addressing "Harassment in School/Anti-Bullying." The nurse and principal have records indicating action that has been taken to address issues involving [the child]'s care at school. They have communicated with [the mother] and responded to her concerns, which are many. [The mother] has met with the teacher, school social worker, two nurses, assistant principal, and principal. The principal investigated [the mother's] allegations and they are unfounded. [The mother] has been contacted about her concerns and when addressed, she raises another concern. She has accused the bus driver of causing scratches on [the child]. She accused the teacher of causing scratches on [the child]. Yet, [the child] has come to school with filthy long unkempt fingernails suggesting [the mother] is not practicing good hygiene at home.
The relationship between [the mother] and the school staff is very important. The principal, teachers, and other employees at our Early Childhood Center are very aware of their responsibilities and take their jobs seriously. They care about the welfare of students and make efforts to forge positive relationships with parents. Your
correspondence jeopardized that relationship and, quite frankly, I am surprised by your action.
By letter of March 12, 2009, plaintiff's attorney wrote to Gilson, challenging his statements in the March 5 letter, and conceding that while the school might have a "substantial amount of information" about the child, "how could [plaintiff] avoid notifying the school regardless of that information[?]" Counsel demanded a "written retraction and a written apology[,]" absent which "legal action" would ensue against him. Counsel also advised if Gilson "ma[d]e good" on his "threat" to report plaintiff to the Board of Medical Examiners, plaintiff would "reserve all rights" in an "action against you and the Board of Education . . . ." The letter was also sent to several of the persons who had been sent copies of Gilson's letter.
On March 20, 2009, the Institutional Abuse Investigation Unit (IAIU) of the Department of Children and Families wrote to Gilson, informing him that it received a report on February 28, 2009, about the child and opened an investigation. The investigation revealed that the child had "superficial scratches to his ears" caused by another child in the classroom. The IAIU concluded that no abuse by adults had occurred, and that the allegation of abuse "is not substantiated." The record does not disclose precisely when Gilson received that letter.
The IAIU investigates allegations of abuse or neglect in out-of-home settings. N.J.A.C. 10:120A-1.3.
On April 1, 2009, Gilson responded to plaintiff's counsel with a letter stating:
Your letter suggests to me that Dr. Salah's ignorance of the law or unwillingness to follow it is surpassed only by his arrogance. In answer to your question as to what I think, I think that Dr. Salah should follow the law as stated in N.J.S.A. 9:6-8.10. "Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately to the Division of Youth and Family Services by telephone or otherwise." Your question offensively suggests to me that Dr. Salah was doing the district a favor by not calling the police. At least if he had called the police they would have known to follow the law. Unfortunately, I deal with DYFS all too often and I would rather follow the law and have DYFS do its job than have Dr. Salah make false written accusations. He was way out of line.Copies of this letter were sent to the IAIU, and to the same individuals noted on Gilson's March 5 letter.
Furthermore, because Dr. Salah is a licensed professional[,] I especially want him to follow the law because N.J.S.A. 9:6-8.14 states "any person knowingly violating the provisions of this act including the failure to report any act of child abuse having reasonable cause to believe that an act of child abuse has been committed, is a disorderly person." Did Dr. Salah immediately report his written conclusion that "patient has physical, medical evidence of being abuse/bullied in school"? Did he
ever report it? Did he report it immediately?
I previously indicated to Dr. Salah in my letter that I do not think he should arrive at conclusions without an appropriate investigation. The Institutional Abuse Unit of DYFS has that investigative authority, not Dr. Salah. Had he adhered to the law and not wrongly indicted the Bridgeton Public Schools in a written document, we would not be exchanging letters. The only person who should be apologizing is Dr. Salah for behaving unprofessionally, not following the law, arriving at false conclusions, potentially damaging the relationship between the parent and school, and for now trying to cover up for his failings by having you try to intimidate and bully me into an apology.
The more I think about this, the more outraged I become. I continue to be appalled by Dr. Salah's behavior. In 36 years I have never seen such conduct from a doctor. He just doesn't get it! I am so appalled that I am no longer considering filing a report with the New Jersey State Board of Medical Examiners. I have filed a report. Now the Division of Youth and Family Services, Board of Medical Examiners, and the court can all do their jobs. I will have no further comment until Dr. Salah apologizes to the school district or you make good on your threat, in which case I will comment in court.
That same day, Gilson filed a complaint with the New Jersey State Board of Medical Examiners (Medical Board), alleging that:
Dr. Salah wrongly concluded and informed a parent that a student of the Bridgeton Public Schools had been abused and/or bullied at school. He then, through his attorney, made false accusations against me and provided copies of his false accusations to . . . professionals employed by the Bridgeton Board of Education. Dr. Salah did not adhere to the law, specifically N.J.S.A. 9:-6-8:10 and 9:6-8.14.After quoting plaintiff's prescription note, Gilson continued:
Dr. Salah has no evidence to draw such a conclusion and relied on the child's mother for his information. To my knowledge, he did not contact DYFS in the manner prescribed by law and therefore is not only guilty of unprofessional conduct and pandering to a patient, according to the previously stated statute he is a disorderly person . . . . I wrote a letter to Dr. Salah . . . expressing my surprise at his irresponsible action and informed him I was considering a report to your office in hopes that he would learn by his mistake. Instead, his response was to have his attorney write me a letter and try to bully me into an apology. I responded and the school district's attorney responded to Dr. Salah's attorney.
On July 6, 2009, the Medical Board wrote to plaintiff, informing him that after reviewing Gilson's complaint, it determined "that the issues which were identified were distressing to the complainant, but do not provide any basis to initiate disciplinary action." The letter also noted that the disposition of the complaint would remain in the Medical Board's "confidential files."
On February 24, 2010, plaintiff filed a seven count complaint against defendants. The complaint alleged that Gilson's "representations and accusations" were "false" and "malicious." The complaint also alleged that Gilson told "others" between March and September 2009, that plaintiff was irresponsible and violated the "law regarding reporting child abuse." In the first and second counts of his complaint, plaintiff asserted that Gilson violated plaintiff's due process and free speech rights under paragraphs one and six of article one of the New Jersey Constitution, by acting in a manner that was "irrational and arbitrary" and was "motivated, at least in part, by plaintiff's protected activity."
In the third and fourth counts of his complaint, plaintiff asserted that the Board violated plaintiff's due process and free speech rights under the New Jersey Constitution, and that "[b]y failing to intervene[,]" the Board "ratified" Gilson's actions, evidencing a "policy, practice, custom or procedure to deprive individuals of their constitutional rights." The fifth, sixth and seventh counts of the complaint asserted claims against Gilson for libel, slander, and defamation, respectively.
Plaintiff did not file a formal notice of tort claim against defendants pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, prior to filing his complaint. During discovery, plaintiff testified that he had experienced some chest pains, sleeplessness, headaches and weight gain during the course of these interactions, but never sought medical treatment and his symptoms subsided. Also, he explained he "can't be sure" he suffered financially as a result of defendants' actions, presented no evidence of financial loss, and his tax returns showed his income rose following the events at issue. Further, plaintiff stated that no one at the hospital where he serves as Chairman of Pediatrics treated him differently following defendant's actions; his relationship with his staff was not compromised thereby; and no parent or patient advised they were leaving his practice because of defendants' actions.
Intentional torts, such as libel, slander and defamation, are subject to the notice provisions of the TCA. See, e.g., Velez v. City of Jersey City, 180 N.J. 284, 286 (2004). ("We now hold that a plaintiff must give a public entity written notice, pursuant to the [TCA], prior to filing a common law intentional tort action against a public employee.")
On August 5, 2011, defendants filed a motion for summary judgment, arguing, among other things, that plaintiff did not file a tort claim notice as required by the TCA. Plaintiff argued that a tort claim notice was unnecessary in this case and that, in any event, counsel's letter to Gilson on March 12, 2009, constituted "substantial compliance" with the notice provisions of the TCA.
On October 18, 2011, Judge Richard J. Geiger entered an order granting summary judgment to Gilson on the tort claims asserted in counts five, six and seven of the complaint, but denied the remainder of defendants' motion. The judge rejected plaintiff's arguments that notice was not required and that counsel's letter constituted "substantial compliance" with the statute. In his oral opinion, Judge Geiger reviewed the requirements of N.J.S.A. 59:8-4 and the policies underlying the statute and explained:
Here, the Court finds that [counsel's] letter of March 12, 2009[,] does not constitute substantial compliance with the notice requirements of the Tort Claims Act, because it fails to provide the necessary information required by the Tort Claims Act. And [it] simply does not suffice to adequately [sic] lay out the facts, the allegations, the amount of the claim, et cetera, as required by 59:8-4.
. . . .
This is even more evidence[d] since the Complaint alleges that the [d]efendants engaged in substantial conduct forming a basis for the cause of action after the . . . March 12, 2009 letter.
After all, the Complaint lays out a whole chronology of alleged facts occurring after that date, including the April 1 letter of [d]efendant Gilson, the
publication of the April 1 letter by [d]efendant Gilson.
[There is t]he filing of a complaint by defendant Gilson against plaintiff with the Board of Medical Examiners and subsequent defamatory publications between March of 2009 and September of 2009.
. . . .
This Court [also] holds that plaintiff should have given tort claim notice to the Bridgeton Board of Education for any allegations of libel, slander or defamation.
On January 5, 2012, defendants filed a second motion for summary judgment, seeking dismissal of the four remaining counts alleging violations of article one, paragraphs one and six of the New Jersey Constitution. Judge Geiger heard oral argument on February 17, 2012, and granted summary judgment dismissing the remainder of plaintiff's complaint. The judge first analyzed plaintiff's due process claim:
The investigation that Dr. Salah says should have occurred would have been, perhaps, a due process right of the child that was allegedly bullied or abused or harassed; not a due process right of Dr. Salah from anything that I can see in this matter. Dr. Salah sent in a slip, a prescription slip, that suggested that this student had evidence of being either bullied or harassed at school because of either cuts or scratches or a bite mark about his ear.Regarding plaintiff's free speech claim, Judge Geiger stated:
. . . .
But the difficulty I have is seeing how the good doctor's due process rights were
violated. Remember, the doctor was not an employee or agent of the school, the plaintiff. He was the child['s] pediatrician . . . . I don't see that the doctor had a right to due process in the form of an investigation or otherwise before Gilson undertook his activities.
With regard to free speech, I don't see how Dr. Salah's right to free speech was violated in this matter. He exercised his right to free speech and nobody prevented him from doing so. He voiced his opinion pretty strongly himself. He issued the initial slip and he responded; he consulted with an attorney and the attorney responded on his behalf. I don't really see there being a violation of his right to free speech.Finally, though noting that his findings related to plaintiff's loss were not "the foundation of [his] decision," Judge Geiger stated:
[B]ut here the proof in terms of the discovery and record in this matter as to any alleged loss are - I'll use the word "weak." The tax returns and other part of the record do not really establish pecuniary loss. He [w]as never treated for his supposed emotional injuries by way of medication, counseling, medical treatment, or self-treatment. And he doesn't really show how his reputation in his profession or the community were substantively affected. Because apparently in discovery he was unable to produce evidence that he suffered negative consequences in terms of losing patients or clients; interaction with staff, colleagues, or the hospital in general.The judge entered a confirming order on February 17, 2012. This appeal followed.
II.
In reviewing a grant of summary judgment, we apply the same standard as the motion judge. EMC Mortgage Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Alt. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230, (App. Div.), certif. denied, 189 N.J. 104 (2006).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on the issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
III.
Guided by these principles, we turn first to the issue of plaintiff's failure to file a formal tort claim notice and whether counsel's letter of March 12, 2009, constituted substantial compliance with the statute.
We do not consider the issues of whether some or all of Gilson's statements are defamatory in the first instance, see, e.g., Higgins v. Pasack Valley Hosp., 158 N.J. 404 (1999), and whether there is actionable publication, see G.D. v. Kenny, 205 N.J. 275, 292-93 (2011). Also, we do not consider the issue of absolute or qualified immunity. See Ramos v. Flowers, 429 N.J. Super. 13, 24 (App. Div. 2012). These issues were not explicitly argued before the motion judge, and consequently, we will not consider them here. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding that appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." (citation omitted)).
A claimant may not bring an action against a public entity under the TCA unless he complies with its notice requirements. See N.J.S.A. 59:8-3, 59:8-4 and 59:8-8. The purpose of the notice to the public entity defendant is
(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare
a defense[;] (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet.
[Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) (internal quotation marks and citations omitted).]
The TCA provides that "[n]o action shall be brought against a public entity or public employee . . . unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." N.J.S.A. 59:8-3. The claim must be filed not later than the ninetieth day after the accrual of the cause of action, N.J.S.A. 59:8-8, and must contain the following information: (1) the name and address of the claimant and the address(es) to which notice should be sent; (2) the date, location, and circumstances of the occurrence or transaction which gave rise to the claim; (3) a description of the injury or damages claimed; (4) the name(s) of the public entity or employee involved; and (5) the amount claimed. N.J.S.A. 59:8-4.
The "claim shall be signed," N.J.S.A. 59:8-5, and "shall be filed with [the local public] entity," N.J.S.A. 59:8-7. N.J.S.A. 59:8-10(c) provides that "[s]ervice of the notice required by this chapter upon the public entity shall constitute constructive service upon any employee of that entity." If the claimant fails to file an appropriate notice of tort claim as required by the TCA, "[t]he claimant shall be forever barred from recovering against a public entity or a public employee." N.J.S.A. 59:8-8.
We have cautioned that a literal interpretation of N.J.S.A. 59:8-8 should be avoided where a claimant substantially provided the information specified in N.J.S.A. 59:8-4 and afforded the public entity an ample basis for the investigation and evaluation of the information as contemplated by N.J.S.A. 59:8-8. Henderson v. Herman, 373 N.J. Super. 625, 636-37 (App. Div. 2004). The doctrine of substantial compliance with the statute serves "the purpose of alleviating the hardship and unjust consequences which attend technical defeats of otherwise valid claims." Anske v. Borough of Palisades Park, 139 N.J. Super. 342, 347 (App. Div. 1976) (citing Lameiro v. W. N.Y. Bd. of Educ., 136 N.J. Super. 585 (Law Div. 1975); Dambro v. Union Cnty. Park Comm'n, 130 N.J. Super. 450 (Law Div. 1974)).
"'[S]ubstantial compliance means that the notice has been given in a way, which though technically defective, substantially satisfies the purposes for which notices of claims are required.'" Lebron v. Sanchez, 407 N.J. Super. 204, 216 (App. Div. 2009) (quoting Lameiro, supra, 136 N.J. Super. at 588). We have concluded that no substantial compliance existed where, "[a]lthough the information which plaintiff supplied to the municipal clerk's office ordinarily would satisfy the statutory requirements, it was not in written form," which is "essential under the statute." Anske, supra, 139 N.J. Super. at 348 (citing Lameiro, supra, 136 N.J. Super. at 588); see also Wunschel v. City of Jersey City, 96 N.J. 651, 667-68 (1984) (concluding the filing of a workers' compensation petition did not demonstrate substantial compliance because it did not give notice of intention to assert wrongful death claim against public entity); Lameiro, supra, 136 N.J. Super. at 588 (holding attorney's letter to school principal asking for name and address of student who injured client did not constitute substantial compliance.)
In Lamiero, supra, we stated:
Substantial compliance, however, is based on the notion that substantially all of the required information has been given to those to whom the notice should be given and that it has been given in a form which should alert the recipient to the fact that a claim is being asserted against the sovereign.With these principles in mind, we conclude that the March 12, 2009 letter of plaintiff's counsel did not constitute "substantial compliance" with the notice provisions of the TCA.
[136 N.J. Super. at 588 (emphasis added).]
First, the letter was not sent to the Board, but only to Gilson. Moreover, the letter did not plainly alert defendants that a claim "is being asserted" against them. At best, the letter constituted notice to Gilson that, potentially, a claim may be brought against him if he failed to issue a written retraction and apology. The letter did not state or suggest that such a claim would also be brought against the Board. The letter further "reserve[d] all rights" against Gilson and the Board if Gilson filed a complaint with the Medical Board against plaintiff.
In addition, as Judge Geiger observed, plaintiff's complaint is based on a host of factual averments that post-date March 12, 2009. As of March 12, therefore, there was nothing for the Board to investigate or evaluate. Rather, the letter stated that counsel had been instructed by plaintiff to "take legal action" if Gilson did not provide a written retraction, and "reserve[d] all rights" if a complaint were filed with the Medical Board. Counsel's letter, reasonably read, threatens a potential future claim if certain actions are not taken, or if a future complaint against plaintiff is filed with the Medical Board. An amorphous threat by counsel, intended to prompt an apology and chill further action, does not constitute "substantial compliance" with the notice provisions of the TCA.
IV.
We now turn to plaintiff's argument that Judge Geiger improperly granted summary judgment to defendants dismissing plaintiff's State constitutional claims. We first consider plaintiff's claim that defendants violated his right to due process. We then will consider plaintiff's claims that defendants violated his free speech rights.
A.
Plaintiff argues that defendants deprived him of his "liberty interest" in his reputation without due process in violation of his rights under article one, paragraph one of the New Jersey Constitution. That section of the New Jersey Constitution does not explicitly enumerate a right to due process, but it does provide that all persons "have certain natural and unalienable rights, among which are those of defending life and liberty, [and] of acquiring, possessing, and protecting property . . . ." Our Supreme Court has construed this provision to "embrace the fundamental guarantee of due process." Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 239 (2008).
Plaintiff's complaint is unclear about the nature of the alleged due process invasion. In count one of the complaint, plaintiff alleges that Gilson's statements are "irrational and arbitrary and not based upon enforcement of a legitimate governmental objective[,]" and in count three, plaintiff alleges that the Board, "[b]y failing to intervene or otherwise retract" Gilson's statements, "ratified the conduct" of Gilson, evidencing a "policy, practice, custom or procedure" to deprive persons of their rights. These allegations suggest plaintiff is asserting violation of a substantive due process right, rather than a procedural due process right. See Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 364 (holding that due process comprises "three different kinds of constitutional protection: First, it incorporates specific protections defined in the Bill of Rights . . . . Second, it contains a substantive component, sometimes referred to as 'substantive due process,' which bars certain arbitrary government actions 'regardless of the fairness of the procedures used to implement them.' Third, it is a guarantee of fair procedure, sometimes referred to as 'procedural due process' [under which the State may not] take property without providing appropriate procedural safeguards." (quoting Daniels v. Williams, 474 U.S. 327, 337, 106 S. Ct. 662, 667-68 88 L. Ed. 2d 662, 672 (1986) (Stevens, J., concurring))), cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996).
Substantive due process under article one, paragraph one of the New Jersey Constitution is "reserved for the most egregious governmental abuses against liberty or property rights, abuses that shock the conscience or otherwise offend judicial notions of fairness and that are offensive to human dignity." Filgueiras v. Newark Public Schools, 426 N.J. Super. 449, 469 (App. Div.) (internal quotations, punctuation and citation omitted), certif. denied, 212 N.J. 460 (2012).
Plaintiff's due process claim is grounded upon his assertion that Gilson defamed him and the Board did nothing about it. However, rather than filing a complaint simply alleging defamation, plaintiff included in his complaint a claim asserting that these actions deprived him of rights secured to him under the New Jersey Constitution. Plaintiff contends, in essence, that since Gilson was a school superintendent and the Board was a governmental entity, his defamation claim is thus transformed into a claim for deprivation of due process rights.
In Filgueiras, we declined to recognize a liberty interest in one's reputation that is subject to protection as a substantive due process right. Id. at 474. There, a non-tenured teacher was terminated following allegations that the plaintiff had inappropriately touched a female student and required some male students to "fight like animals" in a make- shift cage during a physical education class. Id. at 461. DYFS concluded both allegations were unfounded, and the plaintiff and the school's vice president appeared at a meeting with the Director of Labor Relations to present their perspectives on the alleged gym incident. Id. at 462-63. The plaintiff filed a complaint against the "Newark Public Schools" and others asserting, among other things, that the defendants violated his due process rights under the New Jersey Constitution and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (the CRA). Id. at 454.
Prior to trial, the court struck the plaintiff's claims based on an alleged procedural due process violation, a ruling which the plaintiff conceded was correct on appeal, and the jury later returned a verdict for the plaintiff on a substantive due process claim that the defendants' "egregious and abusive" conduct impaired his property right in continued employment as a teacher. Id. at 454, 470. On appeal, we reversed and explained that a non-tenured teacher does not possess a sufficient property interest in continued employment to trigger substantive due process protection. Id. at 469-70.
The plaintiff argued, in the alternative, that he was entitled to substantive due process protection of his "liberty interests" to be free from "falsehoods [that] harm the reputation . . . ." Ibid. We rejected this argument and explained:
"Under Article I, Paragraph 1, as under the Fourteenth Amendment's substantive due process analysis, determining whether a fundamental right exists involves a two-step inquiry. First, the asserted fundamental liberty interest must be clearly identified. Second, that liberty interest must be objectively and deeply rooted in the traditions, history, and conscience of the people of this State." Lewis v. Harris, 188 N.J. 415, 435 (2006) (citation omitted) (citing King v. S. Jersey Nat'l Bank, 66 N.J. 161, 178 (1974)). Plaintiff points to no New Jersey precedent that has recognized a liberty interest in one's good reputation that is embodied in our state constitution and protected by substantive due process rights.We further explained:
[Id. at 473.]
[T]he only precedent cited by plaintiff recognizes that one's right to be free of arbitrary and abusive governmental damage to his reputation under our state constitution is protected only by procedural due process guarantees. Plaintiff concedes he was provided with procedural due process . . . .Our conclusion in Filgueiras is applicable here.
Plaintiff now seeks to have us recognize a liberty interest in one's reputation that is embedded in our constitution and subject to protection as a substantive due process right under the CRA. Under the facts of this case, that would require us to convert what was essentially a tort claim of defamation into something actionable under the CRA. The federal precedent under § 1983 has refused to do so under similar circumstances. See Shovlin v.
Univ. of Med. & Dentistry, 50 F. Supp. 2d 297, 317 (D.N.J. 1998) (noting that "to recognize such a claim would be in conflict with the well-settled rule that the tort of defamation does not rise to the level of a deprivation actionable under § 1983").
It is inappropriate for us, as a court of intermediate jurisdiction, to recognize a cause of action, particularly one of constitutional dimension, heretofore never recognized under existing jurisprudence from our Supreme Court. See Riley v. Keenan, 406 N.J. Super. 281, 297 (App. Div.) (noting that an appellate court "should normally defer to the Supreme Court . . . with respect to the creation of a new cause of action") (citing Tynan v. Curzi, 332 N.J. Super. 267, 277 (App. Div. 2000)), certif. denied, 200 N.J. 207 (2009). We refuse to do so.
[Id. at 474-75.]
Further, as we said in Filgueiras, we read neither Doe v. Poritz, 142 N.J. 1 (1995), nor In re Allegations of Sexual Abuse at East Park High School, 314 N.J. Super. 149 (App. Div. 1998), two cases relied upon by plaintiff here, as warranting a different result. Doe did hold that one's reputation is a liberty interest triggering procedural due process protection under article one, paragraph one of the New Jersey Constitution. 142 N.J. at 104. However, the Court explicitly recognized that "[w]e deal here not with the question of substantive due process protection, for we have held there is none" in a reputation claim brought as part of a challenge to laws requiring community notification regarding certain sex offenders. Id. at 99.
Moreover, the Doe Court considered the holding of the United States Supreme Court in Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 1160-61, 47 L. Ed. 2d 405, 414 (1976) that reputational harm is only actionable if, in addition, there is "deprivation of some additional right or interest" and explained:
According to Professor Tribe, "[T]he Court evidently believed that any contrary result would have the unthinkable consequence of federalizing the entire state law of torts whenever government officers are the wrongdoers." Laurence H. Tribe, American Constitutional Law 1397 (2d ed. 1988). That concern, however, is not present in the instant case. Finding a protectable interest in this case would not risk federalizing tort law. Plaintiff's claim is not a state defamation action. We are not here dealing with random disclosures, but with systematic disclosures following ex parte classification by local prosecutors.Given that Doe deals only with procedural due process claims in the context of "systematic disclosures" following an ex parte classification of sex offenders, we determine that Doe offers no support to plaintiff's claim for a substantive due process right in this case.
[142 N.J. at 102, n.26.]
Further, in East Park High School, supra, we held that a teacher has a right to an administrative hearing before the teacher's name is included in the Central Registry where DYFS substantiates a child abuse charge against the teacher. 314 N.J. Super. at 159-66. Like Doe, East Park High School is concerned with procedural due process rights based upon governmental classifications that have the potential to harm a citizen's reputation.
The Central Registry is a centralized data bank containing reports of substantiated findings of child abuse. N.J.S.A 9:6-8.11.
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B.
Considering plaintiff's claim in light of procedural due process violations - which, as noted, is not suggested by the pleadings - we note that while Doe extends procedural due process protections to personal reputation without requiring a "tangible loss," 142 N.J. at 104, "this does not mean that a liberty interest is implicated anytime a governmental agency transmits information that may impugn a person's reputation." In re an Allegation of Physical Abuse Concerning L.R., 321 N.J. Super. 444, 460 (App. Div. 1999) (no hearing required where DYFS does not substantiate child abuse, but nonetheless expresses by "limited dissemination" some "intrinsically less damaging" concerns about the teacher's conduct). In In re an Allegation of Physical Abuse Concerning R.P., 333 N.J. Super. 105, 112-13 (App. Div. 2000), we stated,
Although a person's interest in protecting his reputation "trigger[s] the right to due process[,] [d]ue process is not a fixed concept, . . . but a flexible one that depends on the particular circumstances." [Doe] at 106. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972). Thus, even if a person has a constitutionally protected interest, it does not automatically follow that the person must be afforded an opportunity for an adjudicatory hearing. See High Horizons Dev. Co. v. N.J. Dept. of Transp., 120 N.J. 40, 48-54 (1990); N.J. Parole Bd. v. Byrne, 93 N.J. 192, 211 (1983).
In the case before us, we fail to perceive precisely what procedural vehicle plaintiff contends should have been employed as a matter of constitutional mandate. The motion record demonstrates that Gilson made inquiry of knowledgeable employees at the Early Childhood Center before he sent out his letter of March 5. It is fatuous to suggest that Gilson was constitutionally required to speak to plaintiff before conveying allegedly defamatory communications.
Further, Gilson's complaint to the Medical Board did not violate plaintiff's procedural due process rights. If anything, the proceedings of the Medical Board accorded to plaintiff a procedural name-clearing forum. The Medical Board held that Gilson's allegations were not only unsubstantiated, but also did not even provide a basis to "initiate disciplinary action." Under these facts, therefore, we fail to perceive any procedural deprivation of protected rights.
Finally, we note that, in addition to the collective weight of our precedent cited above, there is a sound policy argument militating against a finding that plaintiff's constitutional due process claim is legally cognizable under the facts of this case. If we were to hold that the alleged emotional trauma resulting from Gilson's statements was, without more, sufficient to justify a State constitutional due process liberty claim, virtually every plaintiff alleging defamation would have a constitutional claim ready-made to survive at least through summary judgment, because defamatory remarks or acts, by their very nature, often cause distress to their target. Cf. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 797 (3d Cir. 2000) ("This court has warned against equating a state defamation claim with a cause of action under section 1983 predicated on the Fourteenth Amendment.") (quoting Kelly v. Borough of Sayreville, 107 F.3d 1073, 1078 (3d Cir. 1997) (internal quotation marks and citations omitted)). The end result would be that any random and isolated statement by a government employee construed as defamatory, would be actionable as a violation of a constitutional right. No case in New Jersey so holds and Doe, as noted, explicitly rejects such a claim. 142 N.J. at 102 n.26.
For all these reasons, summary judgment dismissing plaintiff's due process claim was proper.
V.
Plaintiff also argues that Gilson's statements infringed his right of free speech under article one, paragraph six of the New Jersey Constitution, which provides that "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." New Jersey courts rely on federal constitutional principles in interpreting the State Constitution's free speech clause. Karins v. Atlantic City, 152 N.J. 532, 547 (1998).
Typically, in order to show that a deprivation of a First Amendment right has occurred, a plaintiff must, at a minimum, demonstrate that the defendant intended to inhibit speech protected by the First Amendment, Tatro v. Kervin, 41 F.3d 9, 18 (1st Cir. 1994), and that the defendant's conduct had a chilling effect on the protected speech that was more than merely "speculative, indirect or too remote." Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989). And, of course, a plaintiff's response to a defendant's allegedly wrongful or "threatening" conduct must be reasonable. See, e.g., Mendocino Environmental Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999) (holding that, with regard to a plaintiff's claim that his or her First Amendment rights were chilled, "the proper inquiry asks whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities") (internal quotation marks and citations omitted); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) ("It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise.").
Here, a reasonable and properly instructed trier of fact could not conclude that plaintiff was chilled in the exercise of his right to free speech. Stated somewhat differently, Gilson's statements would not, as a matter of law, have deterred a person of ordinary firmness (particularly one trained in, and licensed to practice, medicine) from reporting suspected child abuse as required by N.J.S.A. 9:6-8.10 or speaking out on the issue generally. Further, Gilson's letter of March 5, 2009, invited plaintiff to "report [his] concerns to" the school, but asked that he simply "not arrive at conclusions about the school without the facts." His complaint to the Medical Board was based, in part, on his belief that plaintiff had not complied with N.J.S.A. 9:6-8.10. To suggest, therefore, that Gilson's statements would have deterred a person of ordinary firmness from doing the things that Gilson thought should have been done is meritless.
Gilson did testify that he was "not going to allow some doctor . . . to just banter about allegations against people who I supervise," and that the letter was "a defense of our school system." Plaintiff, on appeal, focuses almost exclusively upon Gilson's intent and contends that the "factual issue is whether defendant Gilson sought to silence [him]." However, given the statements in Gilson's letters, a rational jury could not find sufficient circumstantial evidence that Gilson intended to silence plaintiff. Therefore, summary judgment dismissing plaintiff's free speech claim was proper.
The remainder of plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION