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FOR THE DISTRICT OF NEW JERSEY
ROBERT EDWARD FORCHION,
Plaintiff,
v.
INTENSIVE SUPERVISED PAROLE, et al.,
Defendants.
CIVIL ACTION NO. 02-4331 (JEI)
240 F. Supp. 2d 302
January 24, 2003, Decided
IRENAS, District Judge:
Presently
before the Court is Plaintiff's request for a preliminary injunction
reinstating him to the Intensive Supervision Program ("ISP") pending
the outcome of this matter. The request for a preliminary injunction will be
granted by the Court.
I.
Plaintiff Robert Edward Forchion is currently incarcerated at the Burlington County Jail after originally pleading guilty, on September 20, 2000, to conspiracy to possess with intent to distribute marijuana. Plaintiff was sentenced to a ten year flat sentence and was released into the ISP program on April 3, 2002.
ISP is a
court administered program originally designed by the Administrative Office of
the Courts ("AOC"). State v.
Cannon, 608 A.2d 341, 344, 128 N.J. 546 (1992). It is funded by the Legislature
and is administered by the AOC. Id. at
344. Participants in the program are former inmates who are released from
prison before the end of their sentences and are placed under strict
supervision. Id. at 344. In order to be
accepted into the program an inmate must be approved by the ISP Resentencing
Panel, a panel made up of three appointed judges. Id. at 344-45. Under the program there is "no further
appellate review of the panel's substantive decision." N.J. Rules of Court
3:21-10(e).
On either April 8 or 9, 2002,
Plaintiff was given his first warning that he was violating the terms of his
ISP release. The warning, by ISP officer Warren Campbell, related to an
interview and article published in The Trentonian newspaper. According to the
Plaintiff, he was told not to speak to the press. However, according to his ISP
violation report he was only warned that speaking to the press might give the
impression that he was promoting the use of marijuana, which under the terms of
his release he was not permitted to do.
On May 20,
2002, Plaintiff was again told not to speak to the press after it came to the
attention of an ISP officer that he had given interviews to various
Philadelphia newspapers. Plaintiff was again warned about speaking to the press
on May 23, 2002.
On May 28, 2002, Plaintiff
was scheduled to begin work but was told upon showing up that he could not
start until a later date. Plaintiff failed to notify his ISP officer that he
did not work on that day [*305] and the officer did not become aware of the
violation until it was reported in two newspapers that the Plaintiff had been
protesting outside of the Burlington County Court House on that day. At this
time the Plaintiff was placed under electronic surveillance and home
confinement. While installing the electronic surveillance the ISP officers at
Plaintiff's home demanded that he turn over to them what they claim resembled a
cellular telephone but was instead a tape recorder. Plaintiff refused to turn
over the tape recorder.
On June 2,
2002, Plaintiff left his home during hours in which he was restricted from
doing so. When confronted on this, he claimed that he had attended an
Alcoholics Anonymous meeting and had forgotten that he could not leave his home
on that day. On June 5, 2002, ISP officer Thomas Bartlett was informed that
Plaintiff had been handing out fliers and protesting in front of the Burlington
County Courthouse regarding the legalization of marijuana and a child custody
matter. On June 6, 2002, Plaintiff was arrested and incarcerated at the
Burlington County Jail for violating the terms of his ISP release. In the ISP
report following this arrest the officer stated that "Robert has thus far
refused to comply with the panel's instructions that he not advocate the use of
marijuana."
On June 10, 2002, Plaintiff
was returned to the ISP program and, according to the ISP officers, proceeded
to further violate the conditions of his release. Plaintiff produced, appeared
in, and contracted with Comcast Communications Inc. to air a series of
commercials advocating marijuana use, according to the ISP officers, or
advocating the legalization of marijuana, according to the Plaintiff. The
officers claim that the Plaintiff did not have permission to enter into such a
contract.
The ISP
officers also continued to note that the Plaintiff was talking to members of
the press and either advocating marijuana use or the legalization of marijuana.
In addition, the Plaintiff was directed to refrain from running and updating
his website, "njweedman.com," and from soliciting funds for his
political party, the Legalize Marijuana Party, through the website. Articles
regarding the Plaintiff continued to appear in The Trentonian, this time
regarding his television commercials.
On August 19, 2002 and on
August 29, 2002, the Plaintiff refused to answer questions from ISP officers
regarding the website and his commercials. Instead, Plaintiff invoked his Fifth
Amendment right against self incrimination. Plaintiff also did not pay his
court ordered fines. On August 19, 2002, Plaintiff was again taken into custody
and removed from the ISP program.
Plaintiff's ISP violation hearing in front of the three judge
panel, to determine whether he should be returned to ISP, did not commence
until December 4, 2002. The hearing was not completed on that date and was
continued until January 17, 2003. Again, the hearing was not completed and was
continued, this time to January 29, 2003. Plaintiff originally filed two
matters with this Court, one a habeas corpus petition, and the other an action
under 42 U.S.C. § 1983 claiming retaliation for exercising his First Amendment
rights. Following oral argument before the Court on December 31, 2002, the two
actions were consolidated and the matter was transformed into a § 1983 action.
The Court then issued an order to show cause why a preliminary injunction
should not be issued reinstating the Plaintiff to the ISP program and oral
argument was held on January 21, 2003.
II.
The most immediate issue for this Court is whether abstention is
appropriate [*306] in these circumstances. Defendants claim that under the
Rooker-Feldman doctrine this Court cannot review the ISP Resentencing Panel's
decisions. The Rooker-Feldman doctrine states that "a party's recourse for
an adverse decision in state court is an appeal to the appropriate state
appellate court, and ultimately to the Supreme Court," Parkview Assocs.
Pshp. v. City of Lebanon, 225 F.3d 321, 324 (3d Cir. 2000), and so therefore
only state appellate courts or the United States Supreme Court can review the
decisions of state courts for constitutional error. Port Auth. Police Benevolent Ass'n, Inc. v. Port Auth. of New
York and New Jersey Police Dep't, 973 F.2d 169, 177 (3d Cir. 1992). However,
the doctrine only applies when the action taken by the state body is judicial,
and not legislative, ministerial, or administrative, in nature. District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 479, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983) (noting
that an administrative action is one which involves rulemaking of some sort and
does not involve the interpretation and application of existing law).
The Rooker-Feldman doctrine does not apply to this case. The ISP
Resentencing Panel has final authority over the Plaintiff and there is no way
of appealing its decisions. Accordingly, this Court does have the authority to
review the decisions of the panel. In addition, the Panel is acting in many ways
as an administrative, rather than judicial, body. It sets the conditions that
the Plaintiff must follow to remain in ISP. These conditions do not come from
existing law but are instead determined by the panel for each individual ISP
participant. As such, review by this Court of the actions of the Panel is
appropriate. Even more relevant is that this action is not a review of any decision by the ISP Panel. Plaintiff was in
fact removed from ISP without any review by the Panel. Instead, this is a §
1983 action against those who removed the Plaintiff from ISP. Therefore, the
Rooker-Feldman doctrine is also not applicable here because there has been no
decision by a state court.
Abstention under the Younger doctrine is also a relevant issue
in this case. Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746
(1971). The Younger doctrine states
that federal courts cannot intervene in a matter when (1) there is an ongoing
state judicial proceeding; (2) the proceeding implicates important state
interests; and (3) there is an adequate opportunity in the state judicial
proceeding to raise constitutional challenges. n1 Middlesex County Ethics Comm.
v. Garden State Bar Ass'n, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515
(1982); Port Auth. Police Benevolent Ass'n, Inc., 973 F.2d at 173.
While there is an ongoing state proceeding taking place, the ISP
Resentencing Panel, that proceeding is not judicial in nature. Simply because
three judges sit on the ISP Panel does not mean [*307] the Panel itself is
performing a judicial function. While
many administrative proceedings are considered to be judicial in nature, that
is not always the case. Ohio Civil
Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 627 n.2, 91 L.
Ed. 2d 512, 106 S. Ct. 2718 (1986) (stating that abstention may not be
appropriate where the administrative proceedings are expressly considered not
to be "judicial in nature").
In the Middlesex County Ethics Committee case the Supreme Court
held that the practice of reviewing ethics violations of attorneys by District
Ethics Committees was a judicial function because of the clear language in New
Jersey Supreme Court decisions about the role of the Committees and because of
the judicial nature of the proceedings.
Middlesex County 457 U.S. at 433-34. That is not the case with regard to
the ISP Resentencing Panel. The Panel in many ways acts as a parole board would
and does not perform what are traditionally thought of as judicial functions.
While it is true that some of its functions are judicial, others are clearly
not. The program itself is run by the Administrative Office of the Courts. n2
In reality, ISP is only partly a judicial program and the ISP Resentencing
Panel performs a mixture of both
administrative and judicial functions. Yet the balance of its duties is
closer to those of a parole board than to those of a court. While it does have
the power to modify the sentences of inmates, a judicial function, in this case
it is using its power in the fashion of a parole board. See State v. Clay, 553 A.2d 1356, 1359, 230
N.J.Super. 509 (N.J. Super. Ct. App. Div. 1989).
There is no question that the proceedings before the ISP
Resentencing Panel implicate important state interests. However, there is a
real question over whether there is an adequate opportunity, even if the
proceedings can be considered judicial in nature, for the Plaintiff to raise
constitutional challenges. This is because there is no opportunity for the
Plaintiff to appeal the decisions of the ISP Panel to any New Jersey court and
present his constitutional arguments to such a court. Without an opportunity to
appeal to a true New Jersey state court it is likely that the Plaintiff will
not be afforded an adequate opportunity to raise his constitutional challenges.
See manatullah v. Colorado Bd. of
Medical Examiners, 187 F.3d 1160, 1164 (10th Cir. 1999) (holding that there was
adequate opportunity when state court judicial review of an administrative proceeding
was available); Port Auth. Police Benevolent Ass'n, 973 F.2d at 174 (stating
that the ability to appeal to an appellate tribunal makes it apparent that
there was adequate opportunity to raise constitutional issues). The lack of an
appeal procedure also indicates that the actions of the ISP Panel are not
judicial in nature, for if the Panel was exercising a judicial function there
would likely be a procedure for appeals. This implicates the first requirement
of the Younger doctrine.
In addition, this Court is unsure of the extent to which the ISP
Panel will be able to adequately review the Plaintiff's constitutional claims.
The record is light as to whether the Plaintiff has been able to fully argue
his constitutional claims in front of the Panel. With no opportunity for any
review of those claims in state court, if it happens that the ISP Panel has not
been adequately reviewing them, there cannot be an adequate opportunity for the
claims [*308] to be heard. Ohio Civil
Rights Comm'n, 477 U.S. at 629.
III.
Plaintiff
seeks a preliminary injunction reinstating him to ISP and removing him from
incarceration. A district court should
grant preliminary injunctive relief only if: (1) the plaintiff is likely to
succeed on the merits; (2) denial will result in irreparable harm to the
plaintiff; (3) granting the injunction will not result in irreparable harm to
the defendants; and (4) granting the injunction is in the public interest.
Maldonado v. Houstoun, 157 F.3d 179, 184 (3d Cir. 1998).
In light
of the fundamental constitutional issue raised by the Plaintiff, the
availability of preliminary injunctive relief will turn primarily on whether
Plaintiff has sufficiently demonstrated a reasonable likelihood of success on
the merits with respect to his constitutional claim.
IV.
A.
In order to show a likelihood of success on the merits in his §
1983 retaliation claim the Plaintiff must demonstrate (1) that the conduct
which led to the alleged retaliation was constitutionally protected; (2) that
he suffered some adverse action as a result of his actions; and (3) that there
is a causal link between the constitutionally protected conduct and the adverse
action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Should the Plaintiff
establish that the constitutionally protected conduct "was a substantial
or motivating factor in the challenged decision, prison officials may still
prevail by proving that they would have made the same decision absent the
protected conduct for reasons reasonably related to a legitimate penological
interest." Id. at 334.
There is no
question that the conduct which led to the alleged retaliation was
constitutionally protected. Most of the infractions cited by the ISP officers involved the
Plaintiff either speaking to the press, protesting and handing out pamphlets
outside of the courthouse, running a website, or producing and appearing in
television commercials. This behavior is clearly protected by the First
Amendment, particularly since it primarily involved the Plaintiff's belief that
marijuana should be legalized. n3
Such speech involves a public issue and is explicitly the
type of speech that the First Amendment is designed to protect. n4 See Boos v. Barry, 485 U.S. 312, 318, [*309] 99
L. Ed. 2d 333, 108 S. Ct. 1157 (1988); New York Times Co. v. Sullivan, 376 U.S.
254, 270, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964) ("debate on public issues
should be uninhibited, robust, and wide-open").
The
Plaintiff also clearly suffered an adverse action by a state actor. He was
removed from ISP and placed back in jail. Certainly placement in ISP, where the
Plaintiff was able to live at home with his family and enjoy some level of
freedom, is preferable to incarceration.
Based on
the evidence before the Court there is a causal link between the actions of the
Plaintiff and the adverse action taken against him. In other words, Plaintiff's
constitutionally protected activities were substantial or motivating factors in
the decision to remove him from the ISP program. The vast majority of the complaints
against the Plaintiff involved his actions supporting the legalization of
marijuana. The first time he was removed from ISP was following the discovery
that he had been handing out fliers and protesting in front of the courthouse.
In addition, the report of the ISP officer at that time specifically states
that his failure to refrain from advocating the use of marijuana was the reason
for his removal from the program. n5 His second and final removal from ISP
followed disputes with the ISP officers over the Plaintiff's television
commercials, website, and contact with the press.
In fact, the only complaints
regarding the Plaintiff's behavior that are not speech related involved a
failure to promptly notify the ISP officer when his first day of work was
postponed, the alleged failure to turn
over a tape recorder that was in the hands of the Plaintiff, the attendance at
the Alcoholics Anonymous meeting when the Plaintiff was confined to his home,
and Plaintiff's failure to make progress towards the payment of his court
ordered fines. n6 These are all minor violations of the conditions placed upon
the Plaintiff and it is doubtful that without the numerous other complaints he
would have been removed from ISP. In addition, only the last complaint regarding
the fines occurred after his first removal from the program, when the report on
the Plaintiff clearly stated he was being removed only for the speech related
issues. The general timing of his removals from ISP and the sheer quantity of
speech related complaints makes it obvious that the speech related activities
were the substantial or motivating factors in the adverse action taken against
him.
The Defendants argue that even absent the protected conduct they
would have still removed the Plaintiff from the program for legitimate
penological reasons. As
was noted above, the evidence is clear that the Defendants would almost surely
not have removed the Plaintiff from ISP absent his speech related behavior,
even for legitimate penological reasons. There are also no legitimate
penological interests in limiting the Plaintiff's free speech right to advocate
the legalization of marijuana. Conditions imposed on released offenders or
prisoners in general cannot be more broad than is necessary and the Defendants
here have not identified any justifications for restrictions on the Plaintiff's
ability to advocate for the legalization of marijuana. See U.S. v. Freeman, 2003 U.S. App. Lexis 196,
2003 WL 57329 (3d Cir. 2003). The Defendants may have had a penological justification
for limiting Plaintiff's speech rights regarding the use of marijuana, but no
attempt was made to delineate what would constitute appropriate[*310] speech.
Clearly, the Plaintiff has shown a likelihood of success on the merits of his §
1983 action.
B.
The next requirement for this
Court to order a preliminary injunction is for the Plaintiff to demonstrate
that he will suffer irreparable harm if the injunction is not granted. "In order to demonstrate irreparable
harm the plaintiff must demonstrate potential harm which cannot be redressed by
a legal or an equitable remedy following a trial. " Instant Air Freight
Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). As Plaintiff
is currently incarcerated and will remain so unless a preliminary injunction is
issued, this is a harm which cannot be redressed following a trial. Therefore,
the requirement that the Plaintiff suffer an irreparable harm is satisfied.
C.
As for the third requirement for the Court to issue a preliminary
injunction, the Defendants will not suffer any irreparable harm from the
Plaintiff being returned to ISP. The Plaintiff will remain in the custody of
the Defendants and they will continue to have supervisory authority over him.
D.
The final
requirement for a preliminary injunction is that granting the injunction be in
the public interest. Certainly it is in the public interest for constitutional
rights to be protected. See Favia v.
Indiana Univ. of Pennsylvania, 812 F. Supp. 578, 585 (W.D.Pa. 1993), aff'd 7
F.3d 332 (3d Cir. 1993). The First Amendment exists so as to promote debate on
issues of public importance. In this case, the advocacy of the legalization of
marijuana is a legitimate political position in this country. The Libertarian Party, whose presidential
candidate received over 380,000 votes in the 2000 election, advocates the
legalization of drugs. Libertarian Party website at http://www.lp.org/issues/relegalize.html and http://www.lp.org/campaigns/pres/.
Many elected public officials have called for a liberalization of the nation's
drug laws. Simply put, Plaintiff's place in this debate will do nothing to harm
a public that is already itself debating the current state of our nation's drug
laws.
In
addition, the release of the Plaintiff into ISP should not lead to any harm or
risk to the public. The Plaintiff has passed all drug tests since entering the
program and has not broken any laws. The complaints against him mainly consist
of his use of peaceful protest as a means of promoting his viewpoint. There is
little evidence that his activities have crossed the line and promoted the use
of illegal drugs.
V.
Because of the nature of the ISP Panel's proceedings and the
questionable ability of the Plaintiff to adequately present his constitutional
issues before that Panel, there is no abstention in this case. Plaintiff has
shown that he is likely to succeed on the merits of his action, that he will
suffer irreparable harm if an injunction is not granted, and that granting such
an injunction will not irreparably harm the Defendants and is in the public
interest. Accordingly, this Court will grant the Plaintiff's motion for a
preliminary injunction and order him returned to ISP. The ISP officers will be
forbidden from removing the Plaintiff from ISP for any future violations unless
they first give the Plaintiff forty-eight (48) hours notice of their
intentions. Should there be the potential for immediate harm to the public good
if the Plaintiff is not removed from ISP the Defendants may make an emergency
motion with this Court. Plaintiff will be put on notice that one of the
conditions [*311]of his release is that he not promote the illegal use of
marijuana.
Dated: January 24, 2003
JOSEPH E. IRENAS, U.S.D.J.
ORDER GRANTING
PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
IRENAS, District Judge:
This matter having appeared before the Court upon Plaintiff's
request for a preliminary injunction, the Court having reviewed the submissions
of the parties and having heard oral argument, for the reasons set forth in an
opinion which findings of fact and conclusions of law are incorporated herein
by reference, and for good cause appearing,
IT IS on this 24th day of January, 2003,
ORDERED THAT:
1. Plaintiff's request for a preliminary injunction reinstating
him to the Intensive Supervision Program is GRANTED.
2. Defendants are PROHIBITED from removing the Plaintiff from
ISP for any future violations unless they first give the Plaintiff forty-eight
(48) hours notice of their intentions. Should there be the potential for
immediate harm to the public good if the Plaintiff is not removed from ISP the
Defendants may make an emergency motion
with this Court.
JOSEPH E. IRENAS, U.S.D.J.
n1
Plaintiff argues that he will suffer "irreparable injury" if he is
not released into ISP and so therefore the doctrine should not apply. 401 U.S. at 43-44. However, the standard set out in Younger to show
irreparable injury is a strict one requiring that the alleged injury be greater
than those injuries incidental to normal criminal proceedings and that there
must be either bad faith, police harassment, or a prosecution without any hope
of prevailing, or that the relevant statute must be fragrantly unconstitutional. 401 U.S. at 46-48, 53-54. In this case there
is no evidence of any bad faith or harassment on the part of the ISP officers,
who believed they were enforcing valid restrictions on Plaintiff's behavior. In
addition, the rules put forth by the Panel are not fragrantly unconstitutional,
because there is an argument to be made that the rules did not violate
Plaintiff's First Amendment rights.
n2 The ISP program has been described as
resting "between traditional probation and parole" but being
"definitely a product of the judiciary." State v. Clay, 553 A.2d
1356, 1358, 230 N.J.Super. 509 (N.J. Super. Ct. App. Div. 1989). However, the
program is also "funded by the legislature ..., endorsed by the Executive
branch, and operated by the Judiciary." Id. at 1358.
n3 While
the line between the promotion of the use of marijuana and the promotion of a
change in the marijuana laws is not always completely clear, Plaintiff has
generally been careful to advocate only the legalization of marijuana. The
various newspaper articles quoting the Plaintiff do not indicate him advocating
that people use marijuana. Instead, he advocates legalizing marijuana or
discusses an unrelated child custody case and claims that as a Rastafarian he
is being discriminated against. The articles even state that the Plaintiff is
no longer a user of marijuana himself.
The transcripts of Plaintiff's commercials
advocate a change in the drug laws and argue that marijuana is medically
beneficial. They do not advocate violating the law. This is also true of
Plaintiff's pamphlets and website. The actions of the Plaintiff, taken
together, demonstrate how difficult it is to draw a strict line between what is
the promotion of a change in the law and what is the promotion of violating the
law. However, there is no evidence indicating that the Plaintiff has
specifically called on people to break the existing drug laws, even in protest
against them. Therefore, the Court finds that the Plaintiff has used his First
Amendment rights to advocate a change in the existing drug laws.
n4 The speech at issue here does not fall
under an unprotected category of speech because it is not directed at inciting
imminent lawless action, only a change in the existing laws. See Brandenburg v. Ohio, 395 U.S. 444, 447, 23
L. Ed. 2d 430, 89 S. Ct. 1827 (1969).
n5 The
Court notes that the Plaintiff's actions were actually closer to advocating the
legalization, not the use, of marijuana.
n6
Plaintiff argues that he did not have the necessary means to pay the fines and
that the ISP officers had never previously indicated that this was a problem.
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