Malhan v. Porrino

REPLY BRIEF to Opposition to Motion

D.N.J.February 14, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF NEWARK SURENDER MALHAN, ) HON. KEVIN MCNULTY, U.S.D.J. Plaintiff,) Civil Action No. 16-8889 (KM-JBC) v. ) CHRISTOPHER S. PORRINO, ) Defendant.) REPLY BRIEF OF DEFENDANT CHRISTOPHER PORRINO IN SUPPORT OF MOTION TO DISMISS CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY Attorney for Defendant R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 (609) 633-7786 MATTHEW J. LYNCH Deputy Attorney General On the Brief Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 1 of 14 PageID: 289 i TABLE OF CONTENTS PRELIMINARY STATEMENT...........................................1 ARGUMENT........................................................2 POINT I MALHAN LACKS ARTICLE III STANDING BECAUSE HE IS NO LONGER SUFFERING ANY JUDICIALLY COGNIZABLE INJURY AND IS NOT IN IMMEDIATE DANGER OF SUFFERING ANY SUCH INJURY...........................................2 POINT II MALHAN MUST FIRST DEMONSTRATE CONSTITUTIONAL STANDING BEFORE THE COURT CAN EVEN CONSIDER WHETHER HE POSSESSES PRUDENTIAL STANDING TO LODGE A FACIAL CHALLENGE UNDER THE FIRST AMENDMENT..........6 POINT III ANY SIMILAR FUTURE HARM SUFFERED BY MALHAN, OR ANY OTHER PERSON, WILL NEVER EVADE REVIEW BECAUSE THERE WILL ALWAYS BE AN ADEQUATE REVIEW PROCESS IN THE STATE COURT SYSTEM................................8 CONCLUSION.....................................................10 Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 2 of 14 PageID: 290 ii TABLE OF AUTHORITIES Cases Babbitt v. Farm Workers, 442 U.S. 289 (1979)...........................................3 Broadrick v. Oklahoma, 413 U.S. 601 (1973)...........................................7 Dombrowski v. Pfister, 380 U.S. 479 (1965)...........................................7 Elk Grove School Dist. V. Newdow, 542 U.S. 1 (2004).............................................7 Get Outdoors II, LLC v. San Diego, 506 F.3d 886..................................................7 Gulf Offshore Co., Div. of Pool Co. v. Mobil Oil Corp., 453 U.S. 473 (1981).......................................9, 10 Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)...........................................7 Sec’y of State v. Joseph M. Munson Co., 467 U.S. 947 (1984)...........................................7 Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334.........................................2, 3, 4 Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383 (1988)...........................................8 Statutes 28 U.S.C. § 1257................................................9 N.J.S.A. 2C:33-4.............................................2, 4 Rules N.J. Ct. R. 2:12-3..............................................9 N.J. Ct. R. 4:30A...............................................9 Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 3 of 14 PageID: 291 PRELIMINARY STATEMENT While Plaintiff Surender Malhan’s Opposition Brief argues that he possesses Article III standing under a “credible threat of enforcement” theory, his Complaint is completely bereft of any of the type of facts needed to successfully plead standing under such a theory. Moreover, contrary to Malhan’s claims in his Opposition Brief, the irreducible minimum needed to establish Article III standing is not paradoxically made more “permissive” when a plaintiff claims that a statute is overbroad under the First Amendment. Finally, while the act of Malhan’s estranged wife seeking a future restraining order under the statute in question is, itself, certainly capable of repetition, such a course of action by her will never evade review because Malhan will always have the opportunity to avail himself to a right of review by the New Jersey Judiciary, just as he did in this instance when the Superior Court dissolved the temporary restraining order. Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 4 of 14 PageID: 292 2 ARGUMENT POINT I MALHAN HAS NOT ALLEGED AN INTENTION TO ENGAGE IN SPECIFIC ACTS THAT WOULD ARGUABLY BE OF CONSTITUTIONAL IMPORT AND POTENTIALLY RUN AFOUL OF N.J.S.A. 2C:33-4 Malhan lacks Article III standing to seek his desired prospective injunctive relief in this case because he has failed to allege an intention to engage in future speech acts that are either arguably of constitutional import or arguably implicated under N.J.S.A. 2C:33-4. In his Opposition, Malhan repeatedly cites the case, Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014), to argue that he has met the threshold minimum requirements to plead pre-enforcement standing based on a credible threat of future prosecution. But, unlike the political advocacy groups in Driehaus, Malhan has failed to plead anything resembling the facts needed to support standing for such pre- enforcement injunctive or declaratory relief here. In Driehaus, the primary plaintiff was the anti-abortion advocacy group Susan B. Anthony List that had published a political advertisement on a billboard accusing a congressional representative of having voted to provide federal funding for abortion procedures. Id. at 2339. As a result, the congressman in question filed a complaint to the Ohio Elections Commission claiming that the advocacy group had violated an Ohio statute Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 5 of 14 PageID: 293 3 that, essentially, made it a crime to make a false statement about a political candidate. Id. at 2338-39. The Election Commission made an initial determination that there was probable cause that the plaintiffs had violated the statute in question, but the congressman withdrew his complaint against the plaintiffs before the Commission made any final determination after a full hearing. Id. at 2339-40. The Supreme Court determined that because the plaintiffs had pled “specific statements they intend to make in future election cycles” in regard to other political candidates and that those specific statements were inherently political and, thus, “affected with a constitutional interest.” Id. at 2343-44 (internal citations and quotation marks omitted). And because the plaintiffs had pled specific future statements they intended to make, the Court was able to make the determination that those statements were “’arguably … proscribed by the statute’ they wish[ed] to challenge.” Id. at 2344 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). As such, the Court found that the plaintiffs in Driehaus had alleged a credible threat of enforcement sufficient to create standing. Id. at 2346. In stark contrast to the plaintiffs in Susan B. Anthony List v. Driehaus, here, Malhan has failed to plead even a single allegation regarding his intent to engage in any future speech Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 6 of 14 PageID: 294 4 acts whatsoever. (See Pl. Comp. at ¶¶ 1-140). Without pleading specific speech acts that he intends to engage in, the Court cannot make any determination in regard to whether those acts would be “affected with a constitutional interest.” See Driehaus, supra, at 2344. Nor can the Court, without allegations regarding specific intended future speech acts, determine whether those acts would arguably be proscribed by N.J.S.A. 2C:33-4. Finally, this case is substantively dissimilar to Driehaus in another important respect: here there has been a lengthy and substantive finding that none of Malhan’s past actions over the course of the preceding four years violated N.J.S.A. 2C:33-4 in the form of a thorough 36 page Opinion issued by the Superior Court that terminated the TRO against Malhan. (See Def. Br. in Supp. of Mot. To Dism., Exhibit A). In Driehaus, the Court determined that the threat of future enforcement against the plaintiffs was substantial because, in addition to the plaintiffs specifically pleading their intention to engage in the exact same activity in relation to other legislators, the Ohio Elections Commission had already conducted a hearing in relation to the group’s past advertisements and found that there was probable cause to believe the group had violated the Ohio statute prohibiting “false statements” in relation to political candidates. Id. at 2345. The Court noted that future complainants Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 7 of 14 PageID: 295 5 of the group’s advertisements could invoke the prior probable cause finding of the Commission in order to help prove that the plaintiffs had knowingly lied in their future statements related to the voting records of legislators. Id. Conversely, here the Superior Court of New Jersey engaged in extensive fact-finding and credibility determinations in its lengthy Opinion finding that Malhan had not violated the statute in question in the course of any of his interactions with his estranged wife over the course of the prior four years. Moreover, the Court noted the lack of credibility of his wife throughout proceedings before the Court. (See Def. Br. in Supp. of Mot. To Dism., Exhibit A at 17, 23-26). Indeed, the court went so far as to state that “[h]er entire testimony seemed rehearsed and quite frankly coached.” Id. at 26. Thus, unlike the plaintiffs in Driehaus who had an adverse finding by a tribunal determining their past acts may have violated the law, Malhan has an extensive Opinion by the Superior Court for the purpose of thwarting any future attempts his estranged wife may make to obtain a similar restraining order. Therefore, Malhan has failed to plead the types of specific facts that could lead the Court to determine that there is a credible threat of future enforcement against him. And while Defendant Porrino has no control over whether Malhan’s estranged Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 8 of 14 PageID: 296 6 wife attempts to obtain a future order against him in relation to some speculative non-pleaded future speech acts, Malhan now has the thorough Opinion of the Superior Court of Hudson County to help inoculate himself from future enforcement by a Municipal Court as happened previously. POINT II MALHAN MUST FIRST DEMONSTRATE CONSTITUTIONAL STANDING BEFORE THE COURT CAN EVEN CONSIDER WHETHER THE OVERBREADTH DOCTRINE WILL ALLOW HIM TO LODGE A FACIAL CHALLENGE UNDER THE FIRST AMENDMENT Malhan’s arguments related to his standing to pursue a facial challenge on behalf of all potentially prosecuted individuals is misplaced when he cannot even establish the minimum threshold needed to possess Article III standing to lodge an as-applied challenge to the statute in question. In his Opposition Brief, Malhan attempts to characterize an aspect of the “overbreadth” doctrine, specifically the ability of an individual plaintiff in a First Amendment case to suspend the need for prudential standing to assert the rights of similarly situated non-parties via a facial challenge to a statute, as somehow a more “permissive” standard than the constitutionally irreducible minimum injury in fact needed to satisfy the Article III “case or controversy” requirement. (See Pl. Opp. Br. at I., 1., A.). In this regard, Malhan has either completely misapprehended or mischaracterized the case-law related to Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 9 of 14 PageID: 297 7 standing under the “overbreadth” doctrine related to the First Amendment. Instead of making the irreducible injury in fact standard somehow more “permissive,” the “overbreadth” doctrine merely serves to suspend the typical additional showing of prudential standing needed to lodge a facial challenge of a statute. See Get Outdoors II, LLC v. San Diego, 506 F.3d 886, 891 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)). This additional hurdle of prudential standing ordinarily supplements the need to show the irreducible minimum needed for Article III standing by requiring that a plaintiff’s claim be “sufficiently individualized to ensure effective judicial review.” Id. (citing Elk Grove School Dist. V. Newdow, 542 U.S. 1, 11 (2004); Sec’y of State v. Joseph M. Munson Co., 467 U.S. 947, 656 (1984); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)). Indeed, the notion that the “irreducible minimum” could somehow be made more permissive would be nonsensical in that it would paradoxically somehow reduce the irreducible. The Supreme Court made it clear that the injury in fact requirement was a necessary threshold to then reach the issue of prudential standing in the very first line of a block quotation contained in Malhan’s Opposition Brief, stating “[e]ven if an injury in fact Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 10 of 14 PageID: 298 8 is demonstrated, the usual rule is that a party may assert only a violation of its own rights.” Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 392–93, (1988) (emphasis added). Therefore, because Malhan has failed to establish an injury in fact because the restraining order against him has been terminated and he has not pled a credible threat of future enforcement, all of Malhan’s arguments regarding the “overbreadth” doctrine under the First Amendment should be disregarded as irrelevant. POINT III ANY SIMILAR FUTURE HARM SUFFERED BY MALHAN, OR ANY OTHER PERSON, WILL NEVER EVADE REVIEW BECAUSE THERE WILL ALWAYS BE AN ADEQUATE REVIEW PROCESS IN THE STATE COURT SYSTEM At several points in his Opposition Brief, Malhan suggested that a potential future TRO against him would be capable of repetition yet evading review. But, as the facts surrounding Malhan’s TRO here perfectly illustrate, while his estranged wife may very well continue to seek future restraining orders in the context of their divorce proceedings, he will always possess the ability to have any future applications by her reviewed in the New Jersey State Court system. In fact, Malhan had a fair, reasonable, and full opportunity to raise any and all applicable legal arguments before the Superior Court here, including the constitutional claims that he is attempting to assert in this case. Indeed, under New Jersey’s entire controversy doctrine, he Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 11 of 14 PageID: 299 9 arguably had an obligation to raise any and all applicable legal arguments in that litigation or else lose the ability to raise them later. See N.J. Ct. R. 4:30A. Furthermore, rather than “evading review,” even if Malhan had lost before the Superior Court in Hudson County, he would have had an immediate right to review of such a decision by the Appellate Division of the Superior Court. (See Def. Br. in Supp. of Mot. To Dism., Exhibit A at 36 (stating that “Plaintiff has 45 days to appeal the decision of the court”)). If Malhan were unhappy with a decision by the Appellate Division of the Superior Court, he could then file a petition for certification to the New Jersey Supreme Court. N.J. Ct. R. 2:12- 3. Finally, if a petition for certification is denied, or the Supreme Court of New Jersey were to render an unfavorable decision, Malhan would then be capable of filing a petition for a writ of certiorari with the United States Supreme Court to seek review to the extent that the New Jersey State courts’ decisions rely on applications of federal law. See 28 U.S.C. § 1257. And the fact that Malhan now seeks a federal venue to raise or re-raise constitutional arguments is of no consequence because absent a specific, explicit Congressional requirement, claims arising under federal law need not be adjudicated in a federal court. Gulf Offshore Co., Div. of Pool Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981). Rather, “[s]tate courts may assume Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 12 of 14 PageID: 300 10 subject matter jurisdiction over” such claims. Id. at 477. As the Supreme Court has noted, “[p]ermitting state courts to entertain federal causes of action facilitates the enforcement of federal rights. If Congress does not confer jurisdiction on federal courts to hear a particular federal claim, the state courts stand ready to vindicate the federal right.” Id. at 478 n.4. Indeed, the United States Constitution “requires the States to recognize federal law as paramount,” and “[f]ederal law confers rights binding on state courts,” “subject always to review, of course, by [the United States Supreme Court].” Id. at 478 & n.4. Thus, while the facts surrounding the previously entered TRO against Malhan, at least in regard to his estranged wife seeking one, may very well be “capable of repetition,” they will never “evade review” so long as Malhan takes care to avail himself of the process afforded to him by the New Jersey State Courts. CONCLUSION For the foregoing reasons, and those previously stated in Defendant’s initial Brief in Support of his Motion/in Opposition to Plaintiff’s Motion for Preliminary Injunctive Relief, Defendant’s Motion to Dismiss should be granted, and Plaintiff’s Motion for Preliminary Injunctive Relief should be denied. Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 13 of 14 PageID: 301 11 Respectfully submitted, CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: s/Matthew J. Lynch Matthew J. Lynch Deputy Attorney General Case 2:16-cv-08889-KM-JBC Document 11 Filed 02/14/17 Page 14 of 14 PageID: 302 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 Attorney for Defendant Christopher S. Porrino By: Matthew J. Lynch Deputy Attorney General (609) 633-8687 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF NEWARK _____________________ : SURENDER MALHAN, HON. KEVIN MCNULTY, U.S.D.J. : Civ. No. 2:16-8889. (KM-JBC) Plaintiff, : v. : CERTIFICATION OF SERVICE CHRISTOPHER S. PORRINO, : ________ Defendant._____ : I hereby certify that Defendant’s Brief in Reply to Defendant’s Opposition to the Motion to Dismiss, and this Certification of Service were electronically filed with the Clerk of the United States District Court and that a copy of these documents will be served via ECF upon the following attorney: Paul Alexander Clark, Esq. Clark Legal Services 10 Huron Ave Suite 1M Jersey City, NJ 07306 Case 2:16-cv-08889-KM-JBC Document 11-1 Filed 02/14/17 Page 1 of 2 PageID: 303 A courtesy copy will be sent to the Hon. Kevin McNulty, U.S.D.J., marked as such. CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: s/Matthew J. Lynch ____ Matthew J. Lynch Deputy Attorney General DATED: February 14, 2017 Case 2:16-cv-08889-KM-JBC Document 11-1 Filed 02/14/17 Page 2 of 2 PageID: 304