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Will the New Jersey Courts Start to Rein in the Wild West of First Amendment Civil Rights Jurisprudence as it applies to the New Jersey Civil Rights Act?Victor A. Afanador

In Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), the United States Supreme Court held that a plaintiff can maintain a 42 U.S.C.§ 1983 action against his employer based upon the employer’s mistaken perception that the plaintiff was exercising his First Amendment right to association. The Court found that a public employee can have a First Amendment right notwithstanding the employee’s admission that he did not engage in any speech nor associate with anyone in any political campaign. Id. The Court held “the government’s reason for demoting Heffernan is what counts here.” Id. at 1418. Whether the employee triggered the civil right at issue was not the focal point of the Court’s analysis.

In Lapolla v. Cty. of Union, No. A-2411-14T3, 2017 N.J. Super. LEXIS 43 (App. Div. Mar. 28, 2017), the Appellate Division affirmed the dismissal of a First Amendment Civil Rights case filed under the New Jersey civil rights Act (“NJCRA”). The Appellate Division held that social and familial relationships alone will not create a First Amendment political association/affiliation cause of action under the NJCRA.

Interestingly, Lapolla structured its legal framework around the Third Circuit’s three-prong test set forth in Galli v. N.J. Meadowlands Comm’n, 490 F. 3d 265, 271 (3d Cir. 2007), for political association matters. The Appellate Division recognized that the trial court correctly found that the plaintiff could not meet the “constitutionally protected political conduct” prong and described the proofs as “murky.” The Appellate Division noted that the trial court found that the plaintiff “was not engaged in constitutionally protected conduct. He was just existing, he was just being.” As such, the trial court dismissed the NJCRA claim for failing to satisfy a prima facie cause of action for the second prong of the political affiliation discrimination claim framework.
The Appellate Division agreed:

Although plaintiff identifies a number of employment actions he claims infringed upon his First Amendment Rights, he has not identified any “expressive exercises or beliefs” of his that were “sufficiently similar to those of the plaintiffs in the seminal cases” to be protected by the First Amendment. He did not support a losing candidate, fail to yield to pressure to support any particular candidate or exercise his right to refrain from any political activity.

The Appellate Division also justified the dismissal of the plaintiff’s NJCRA claim by highlighting that the plaintiff primarily relied upon his brother’s relationship with the rival Democratic Party faction but failed to show any outward political affiliation of his own. Thus, the Appellate Division found “no evidence of constitutionally protected conduct by plaintiff that could support a prima facie case of the second Galli element.”

So, even though the Appellate Division also found other reasons to justify the dismissal, based on qualified immunity, it focused not on the actions of the government and government actors but instead on the actions of the aggrieved plaintiff. This appears to subtly contravene the Heffernan decision and the United States Supreme Court’s analysis through the government employer’s intent lens. How will the New Jersey Supreme Court view this attempt to lasso First Amendment political association rights and the stampede of litigation that may ensue? Will the New Jersey Supreme Court agree and curtail the NJCRA’s wild west approach to civil rights? Only time will tell.