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Fauver, F. Uncertainty of State Law. Before Pullman can apply, the state statute or local ordinance subject to federal constitutional challenge must be uncertain or ambiguous. In fact, the Defendants' request for this Court to abstain is based upon the concession that key statutory provisions are not defined under the Act and are thus ambiguous.

Similarly, Reverend Cummings indicates that this declaratory judgment action stems from his uncertainty concerning the meaning of these statutory provisions, which has allegedly had chilling effect upon his advocacy in favor of discrimination based upon affectational and sexual orientation. Cummings Aff. Where the state courts have authoritatively construed an otherwise ambiguous statute, abstention is not appropriate.

United Services Auto Ass'n v. Muir, F. United Services Auto Ass'n, U. Pontikes, U. Consequently, a court should not abstain where a prior authoritative state court decision forecloses the narrowing interpretation of the challenged statute offered by the party arguing in favor of abstention.

Kusper, U. In contrast, an administrative interpretation of a statute, because it is not authoritative, cannot remove an ambiguity and prevent abstention under Pullman. United Services Auto Ass'n, F. Since Director Stewart's clarifying interpretations cannot authoritatively resolve statutory ambiguities, the Court must determine whether prior New Jersey Supreme Court decisions foreclose an interpretation of either N.

The parties have not cited any published decision by a New Jersey court interpreting this provision nor has the Court's independent research uncovered any such opinions. Regarding N. The Passaic Daily News Corp. Blair, 63 N. Several newspapers challenged an administrative regulation prohibiting publication of employment ads under column headings segregated by gender or any other characteristic protected by the NJLAD. In addition, the regulation declared it a violation of the NJLAD to publish any employment ad that either directly or indirectly expressed an intent to discriminate against persons based upon protected characteristics like sex, unless the preference was based upon a bona fide occupational qualification.

Characterizing the employment ads as commercial speech, the New Jersey Supreme Court held that the regulation prohibiting newspapers from segregating employment ads by gender did not unconstitutionally abridge freedom of the press under the First Amendment.

Stecker, N. Most importantly, The Passaic Daily News upheld the constitutionality of a regulation implementing N. Public Service Comm'n, U. Pittsburgh Comm'n on Human Relations, U. See Stewart Supp. In the absence of any New Jersey Supreme Court decision construing the applicability of the challenged provisions to religiously or politically motivated speech or expressive conduct, the Court concludes that meaning of aiding and abetting discrimination under N.

See Hughes, F. Effect of State Law on the Constitutional Claim. Although an administrative interpretation of a challenged provision cannot authoritatively eliminate uncertainty, an administrative interpretation that narrows or moots the federal constitutional challenge weighs in favor of abstention.

Baird, U. Reverend Cummings' challenge would then be narrowed to a determination of whether expressive conduct, like publishing and distributing leaflets, can constitutionally be actionable as unlawful aiding and abetting under the NJLAD. Passaic Daily News, 63 N. Director, Div. Therefore, there is a significant chance that given the opportunity, the New Jersey Supreme Court would adopt the narrowing constructions of N. Even if the New Jersey Supreme Court did not adopt Director Stewart's precise interpretation, his supplemental affidavit shows that both N.

The amenability of the challenged provisions to narrowing constructions weighs in favor of Pullman abstention. Regarding the third factor, a federal court must examine the importance of the state policies underlying the challenged statute and the potential disruption that would result from an erroneous ruling. Hughes, F. Similarly, the New Jersey Supreme Court has stated that:. The Law Against Discrimination, and the constitutional precepts of equal rights which it vindicates, reflect a pervasive public policy.

Its objectives are constant and have a vital place throughout the panoply of state laws and actions. Terry v. Jackson v. Concord Co. Equitable Considerations. Finally, as additional factors relevant to the Pullman abstention inquiry, courts should consider the relative weight of the first three criteria, as well as additional factors such as the availability of adequate state court remedies and the consequences of the delay caused by a decision to abstain.

See e. With respect to the three abstention criteria already discussed, the Court finds that all weigh strongly in favor of abstention. In addition, New Jersey law provides an adequate remedy whereby Reverend Cummings could obtain a declaratory ruling on his constitutional claims. The availability of declaratory relief under New Jersey law weighs in favor of abstention. Admittedly, if this Court decided to abstain, this action, which has already been pending for over three years, would be delayed still further.

According to Plaintiff, the harm to him and to other OPC members that would result from a decision to abstain, deferring a decision on the merits of this First Amendment challenge alone is sufficient to render abstention inappropriate. Where a candidate for state judicial office mounted a challenge to the Pennsylvania Code of Judicial Conduct which prohibited him from announcing his views on disputed political or legal issues, the potential harm caused by a delayed decision on the merits rendered abstention inappropriate.

Stretton, F. With only a few weeks remaining before the election, a timely state court decision probably could not be obtained, leaving the plaintiff and other candidates in doubt about appropriate topics for campaign discussion. Similarly, the disadvantages of abstaining significantly outweighed the advantages where the plaintiff, a death row inmate, might not be alive by the time the state judicial process had run its course and the litigation returned to federal court for resolution.

Biegenwald, F. Since the delay caused by the decision to abstain would, as a practical matter, deprive the death row inmate of any possible remedy for the alleged constitutional violations, abstention was inappropriate. Both of these cases demonstrate that the harm caused by a delayed decision must be truly extraordinary in order to render abstention inappropriate. Determining whether the harm to Reverend Cummings that would result from a delayed decision meets this high threshold raises unique First Amendment concerns.

In the First Amendment context, the harm of a delayed decision and therefore the appropriateness of Pullman abstention varies, depending upon whether the plaintiff challenges the relevant statute on its face or as applied. Chez Sez, F. Hill, U. Pfister, U. Distinguishing between facial and as applied challenges makes sense under the Third Circuit's two-step Pullman analysis.

See Chez Sez, F. Furthermore, if the challenged statute is in fact invalid on its face, then the delay resulting from a decision to abstain would cause an extremely harmful chilling effect, a discretionary consideration that would weigh strongly in favor of immediate judicial intervention. See, e. In contrast, a plaintiff, by challenging a statute as applied, does not raise such concerns.

United Farm Workers, U. Pullman abstention is not inappropriate per se simply because a statute is being challenged on First Amendment grounds. Moreover, New Jersey law provides a specific mechanism that could substantially mitigate the harm or chilling effect for an individual awaiting a state court determination of whether a challenged statute is constitutional as applied to him.

Under New Jersey law, an individual may seek a binding declaratory ruling from the appropriate administrative agency concerning the applicability of the challenged statute to specific persons or conduct. If this Court were to abstain, Reverend Cummings could avail himself of this administrative procedure while his claims were pending in state court.

By seeking a declaratory ruling from the Division, Reverend Cummings could eliminate much of the harm caused by his alleged uncertainty as to whether his religiously and politically motivated speech and expressive conduct violate the NJLAD. City of Houston, U. Therefore, this Court must assess the viability of Reverend Cummings' facial challenges to the NJLAD's two aid and abet provisions before making any final determination regarding abstention.

If Reverend Cummings' facial challenges are entirely without merit, then there is an increased likelihood that Pullman abstention will be appropriate for his remaining claims, challenging the two provisions, N. Reverend Cummings' Facial Challenge. Reverend Cummings contends that N. According to Reverend Cummings, the challenged provisions are unconstitutional on their face for two reasons: 1 they are unconstitutionally vague and overbroad; and 2 they are content-based regulations which impermissibly discriminate against disfavored viewpoints, such as Reverend Cummings' belief that people should be discriminated against based upon their sexual orientation.

Both of these theories for facially invalidating the challenged aid and abet provisions lack merit. Oklahoma, U. Citizens for a Better Environment, U. A successful overbreadth challenge precludes enforcement of a challenged statute unless and until it is either rewritten by the legislature or authoritatively reinterpreted by a state court to remove the chilling effect upon constitutionally protected expression.

Broadrick, U. Jews for Jesus, Inc. Taxpayers for Vincent, U. Raines, U. Spokane Arcades, U. In such cases, there is:. The statute may be declared invalid to the extent that it reaches too far, but otherwise left intact. Courts should not engage in overbreadth analysis where a plaintiff claims that a statute is overbroad precisely because it applies to him.

Moore v. City of Kilgore, F. Even if the challenged provisions of the NJLAD prohibit speech advocating discrimination, as Reverend Cummings claims, the provisions also encompass conduct that the State may legitimately prohibit. Such a reward scheme would have little to do with the expression of ideas and could legitimately be regulated by the state because of the secondary effects of such conduct. Therefore, Reverend Cummings cannot bring an overbreadth challenge on the ground that the two challenged provisions are not capable of constitutional application.

Second, Reverend Cummings has failed to establish that the challenged aid and abet provisions would have any different effect on third parties not before the Court than it has on himself. To the extent the Amended Complaint asserts claims by Reverend Cummings in his individual, as opposed to his official capacity as a minister, the allegedly prohibited aiding and abetting activities that he and other OPC members engage in and intend to continue are identical.

In so doing, Reverend Cummings has failed to overcome the presumption that this Court should assess the constitutionality of N. This Court expresses no opinion as to whether the challenged aid and abet provisions are in fact overbroad. Reverend Cummings has failed, however, properly to assert such a challenge. Viewpoint Discrimination.

Mosley, U. Freeman, U. City of St. Paul, U. Johnson, U. Members of N. State Crime Victims Bd. Consequently, courts, as the first step in a First Amendment analysis, must determine whether a statute is content-neutral or content-based. Rappa v. New Castle County, 18 F. The level of constitutional scrutiny applied to a challenged regulation depends upon this determination. Ass'n v. Perry Local Educators' Ass'n. Playtime Theatres, Inc.

Renton, U. Barry, U. For this reason, the Supreme Court upheld a city zoning ordinance restricting the location of adult movie theaters, but not other types of theaters, as content-neutral, because the ordinance targeted the secondary effects of adult movie theaters, such as crime and diminished property values, not the content of the adult films themselves.

Rock Against Racism, U. Unlike the statute at issue in R. Compare Minn. Director Stewart's supplemental affidavit construing the challenged provisions provides further support for this characterization. Although an administrative interpretation of a challenged regulation cannot remove an ambiguity for Pullman purposes, courts should consider a limiting construction by an administrative agency charged with enforcement of the challenged regulation in assessing its constitutionality on its face.

Ward, U. Lawson, U. Flipside, Hoffman Estates, Inc. As Director Stewart's interpretation makes clear, the challenged NJLAD provisions are directed primarily toward regulating discriminatory conduct and apply to speech activities only incidentally. As a result of Director Stewart's narrowing construction, the potential overlap between the challenged aid and abet provisions and speech activities is in fact quite narrow.

As Justice Scalia noted in R. Dissemination of ideas committed to writing involves both speech and conduct. While Director Stewart's supplemental affidavit indicates that Reverend Cummings and others will not be prosecuted because of the ideas expressed in written materials, as this Court indicated in its discussion of ripeness, section II. This Court must now assess whether the challenged NJLAD provisions impermissibly regulate this conduct based upon the message conveyed.

See R. Mitchell, U. Without providing any analysis, the Supreme Court made this characterization, while acknowledging that Title VII may be violated by words that create a hostile work environment. Similarly, the Second Circuit Court of Appeals recently upheld a New York statute prohibiting aiding and abetting discrimination in access to public accommodations as a permissible regulation of conduct that only incidentally infringed upon the First Amendment rights of a religious group.

O'Brien, U. Consequently, the Second Circuit applied the O'Brien test, under which a statute will be upheld:. Jewish Community Relations Council, F. See Wisconsin v. See also Roberts v. Jaycees, U. McCrary, U. Rather, an intermediate level of scrutiny applies.

In fact, the tests established by the Supreme Court in Renton for permissible regulation of secondary effects test and O'Brien for expressive conduct are substantially similar. Compare Renton, U. As this Court indicated in the discussion of Pullman abstention, section II.

New Jersey's interest is not only substantial but also can be characterized as compelling. Section —12e, which generally prohibits aiding and abetting discrimination in violation of the NJLAD, thus furthers this substantial State interest. See Renton, U. A statute regulating conduct or secondary effects is not unconstitutional simply because speech or expressive conduct may occasionally provide the vehicle for committing a violation.

Ct at Furthermore, the NJLAD does not prohibit all speech or written materials containing discriminatory statements. Rather, the challenged aid and abet provisions incidentally restrict speech activities in extremely limited circumstances. As interpreted by Director Stewart, the only speech activities that the challenged aid and abet provisions apply to are printing and distribution of written materials. Moreover, printing and distribution are not incidentally restricted in all circumstances, but only where it they are likely to have discriminatory secondary effects of discrimination in employment, public accommodations, business or real estate transactions.

While this analysis disposes of Reverend Cummings' challenge to the general aid and abet provision, section —12e, this Court must address one final objection that relates solely to section —12n, which prohibits aiding and abetting in the specific context of business and credit transactions. Section —12n, the aid and abet provision, and the NJLAD sections that prohibit primary discrimination in business and credit transactions, sections —12 l and m, contain explicit exceptions.

According to Reverend Cummings, section —12n, these exceptions to the general ban against discrimination in business and credit transactions are content-based and therefore violate the First Amendment. The statutory language itself does not fully support Reverend Cummings' claim of content-based discrimination.

This language could just as easily apply to the context in which expressive conduct constituting aiding and abetting discrimination occurs, as to the message of that conduct. Arguing that section —12n is unconstitutional, Reverend Cummings relies upon cases that invalidated ordinances prohibiting all picketing within a public forum except for pickets related to labor disputes. Brown, U. See also Rappa, 18 F. Discovery Network, U. To survive constitutional challenge, a content-based restriction on speech in a public form must survive strict scrutiny.

As a result, the NJLAD is subject a lower level of constitutional scrutiny than the picketing regulations at issue in Mosley and Carey. In regulating conduct and secondary effects legislatures frequently draw distinctions. In making such distinctions, legislatures must comply with the Equal Protection clause of the Fourteenth Amendment. Where a statute targets conduct or secondary effects, these distinctions need only be rationally drawn in order to withstand constitutional scrutiny.

Lee Optical of Oklahoma, U. See also Mitchell, U. Reverend Cummings's bases his equal protection challenge to section —12n upon the mistaken premise that the provision was subject to strict scrutiny and that any content-based exceptions were presumptively invalid. Throughout this litigation, Reverend Cummings has never called the legitimacy of the distinctions drawn by section —12n into question. Neither party addressed this issue in its briefs.

As a result, a rational basis challenge to the provision prohibiting aiding and abetting discrimination in business transactions is not before the Court and cannot provide a basis for invalidation. Reverend Cummings advocated two theories in support of his facial challenges to sections —12e and n: 1 overbreadth; and 2 content or viewpoint-based discrimination. Therefore, Reverend Cummings' motion for summary judgment requesting this Court to declare each provision, sections —12e and n, facially unconstitutional is denied.

Accordingly, the Defendants' motion to dismiss Reverend Cummings' claims of facial invalidity on their merits is granted. Having concluded that Reverend Cummings' facial challenges to the two statutory provisions lack merit, this Court must revisit the issue of Pullman abstention. See City of Houston, U.

As this Court indicated in its discussion of Pullman abstention, section II. C supra, all other relevant factors: the uncertainty of New Jersey law on the challenges aiding and abetting as applied to religiously or politically motivated speech; the ability of a state court decision to narrow the federal constitutional issues presented; and the important state interests that are at stake, this Court exercises its discretion to abstain from deciding the merits of Reverend Cummings claim that sections —12e and n are unconstitutional as applied to him and other OPC members.

Defendants mistakenly contend that Pullman abstention results in dismissal of Reverend Cummings' claims. By abstaining under Pullman, a federal court does not abdicate jurisdiction but merely postpones its exercise. Harrison, U. As a result, this Court retains jurisdiction over Reverend Cummings' as applied challenge to sections —12e and n pending an adjudication by the New Jersey courts. Unless and until such an adjudication is made, this action shall be administratively terminated.

Since the Defendants' failed to file an appropriate pleading, this Court must deny Defendants' request for a declaratory judgment stating that Director Stewart's original and supplemental affidavits represent New Jersey's official interpretation of the NJLAD, as amended in to protect persons from discrimination based upon affectational or sexual orientation.

With respect to Reverend Cummings, his motion for summary judgment is denied. Reverend Cummings' challenges to sections —12c, f, l and m are dismissed as having been previously abandoned in this litigation.

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Kochman and Marissa A. Iorio and Samantha B. Epstein and Jennifer L. Epstein , Jennifer L. Horowitz and Philip R. Mastroianni and Randi W. Carbone and Jed M. Fisch , Wendy M. Berger , Matthew S. Schneid , Jill B. Richardson , Catherine E. Bostock , Robyn A. Pellegrino , Cristina M.

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Hartford Plaza Ltd. In discrimination, hostile work environment and retaliation cases brought under the NJLAD, it is common for a plaintiff to name his or her former supervisor as an individual defendant, particularly if the supervisor is the person who made the decision to take an adverse employment action against the plaintiff.

In addition, legal fees could increase if separate legal representation for the employer and the supervisor is required. These important issues should be considered and discussed with counsel at the outset of the case. Because the NJLAD does not provide for individual liability for aiding and abetting if the employer is not found liable, the best defense is a unified one between the employer and the individual supervisor.

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Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. It is our obligation and duty to do everything in our power to defeat this enemy within our borders and protect as many of our fellow Americans as possible. When we have been at war before we did whatever it took to win. Every American got less cheese, meat, fuel, etc.

All materials needed for the war effort was the first priority of every American. Every American complied, sacrificed and worked to defeat the enemy that wasn't within our borders but a threat to our way of life.

Well this enemy is within our borders and has destroyed our way of life! Well, yes it is as an American right! There is a point where taking that right too far crosses a line. Wear a mask and socially distance that is what all of us must do as infantry in this war. We do that to support the front lines in the hospitals, emergency rooms, stores and plants keeping us fed and the lights on.

This is the deal America! Either you are a patriot fighting the enemy within our borders killing our fellow Americans no matter their color or political affiliation or you aren't. There is no gray area in between that any of us get to hide in this time.

You are fighting our common lethal enemy as an American or you are not! Pick a side, own it, understand the price for it and may we deserve victory over this enemy! America has always defeated our enemy because we worked together to fight for our way of life. Wear a mask and socially distance as American infantryman and prove that the America of today does deserve to defeat its enemy once again!

Are you a soldier in this war or not? Aiding and Abetting the Enemy. Community This content is not subject to review by Daily Kos staff prior to publication.

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