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Today is Tuesday November 08, 2011

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‘Attack Iran‘ and AIPAC‘s infamous chutzpah

Lobbying for a US war with Iran, AIPAC is pushing a bill that would prohibit diplomacy between the two nations.

( XANIEL’S NOTE :  ” AS Mike Rivero stated at his website, Peace will now be illegal! ” )

Source: Al Jazeera
Israel’s threatened attack on Iran may be a ploy to gain further international support [GALLO/GETTY]

Wasting no time after its success in getting the administration to oppose Palestinian statehood at the United Nations, and still celebrating the UNESCO funding cutoff, AIPAC has returned to its number one priority: Pushing for war with Iran.

The Israelis have, of course, played their own part in the big show. In the past few weeks, Israel has been sending out signals that it is getting ready to bomb Iran’s nuclear facilities (and embroil the United States in its most calamitous Middle East war yet).

But most observers do not believe an Israeli attack is imminent. (If it were, would Israel telegraph it in advance?) The point of the Israeli threats is to get the United States and the world community to increase pressure on Iran with the justification that unless it does, Israel will attack.

Naturally, the United States Congress, which gets its marching orders on Middle East policy from the lobby – which, in turn, gets its marching orders from Binyamin Netanyahu – is rushing to do what it is told. If only Congress addressed joblessness at home with the same alacrity.

The House Foreign Affairs Committee hurriedly convened this week to consider a new “crippling sanctions” bill that seems less designed to deter an Iranian nuclear weapon than to lay the groundwork for war.

The clearest evidence that war is the intention of the bill’s supporters comes in Section 601:

(c) RESTRICTION ON CONTACT – No person employed with the United States Government may contact in an official or unofficial capacity any person that –
(1) is an agent, instrumentality, or official of, is affiliated with, or is serving as a representative of the Government of Iran; and
(2) presents a threat to the United States or is affiliated with terrorist organisations.

(d) WAIVER – The president may waive the requirements of subsection (c) if the president determines and so reports to the appropriate congressional committees 15 days prior to the exercise of waiver authority that failure to exercise such waiver authority would pose an unusual and extraordinary threat to the vital national security interests of the United States.

Preventing diplomacy

So what does this mean? It means that neither the president, the secretary of state, nor any US diplomat or emissary may engage in negotiations or diplomacy of any kind unless the president convinces the “appropriate congressional committees” (most significantly, the House Foreign Affairs Committee, which is an AIPAC fiefdom) that not permitting the contacts would pose an “extraordinary threat to the vital national security interests of the United States”.

To call this unprecedented is an understatement. At no time in our history has the White House or State Department been restricted from dealing with representatives of a foreign state, even in wartime.

If President Roosevelt wanted to meet with Hitler, he could have, and, of course, he did repeatedly meet with Stalin. During the Cold War, US diplomats maintained continuous contact with the Soviets, a regime that murdered tens of millions, and later with the Chinese regime, which murdered even more. And they did so without needing permission from Congress. (President Nixon was only able to normalise relations with China by means of secret negotiations, which, had they been exposed, would have been torpedoed by the Republican right.)

But all the rules of normal statecraft are dropped when it comes to Iran, which may or may not be working on developing a nuclear capacity. Of course, if it is, it is obviously even more critical that US government officials speak to their Iranian counterparts.

But preventing diplomacy is precisely what Representative Ileana Ros-Lehtinen (R-FL) and Howard Berman (D-CA), leaders of the House Foreign Affairs Committee that set out this bill, seek. They and others who back the measure want another war and the best way to get it is to ban diplomacy (which exists, of course, to prevent war).

Think back, for example, to the Cuban missile crisis. The United States and the monstrous, nuclear-armed Soviet regime were on the brink of war over Cuba, a war that might have destroyed the planet.

Neither President Kennedy nor Premier Khrushchev knew how to end the crisis, especially because both were being pushed by their respective militaries not to back down.

An essential latitude

Then, at the darkest moment of the crisis, when war seemed inevitable, an ABC correspondent named John Scali secretly met with a Soviet official in New York who described a way to end the crisis that would satisfy his bosses. That meeting was followed by another secret meeting between the president’s brother, Attorney General Robert F Kennedy, and a Soviet official in Washington. Those meetings led to a plan that ended the crisis and, perhaps, saved the world.

Needless to say, Kennedy did not ask for the permission of the House Foreign Affairs Committee either to conduct secret negotiations or to implement the terms of the deal. In fact, it was decades before the details of the deal were revealed.

It is this latitude to conduct diplomacy that the lobby and its cutouts on Capitol Hill want to take away from the White House. And it’s latitude that is especially essential if it is determined that Iran is trying to assemble a nuclear arsenal.

Writing in the Washington Post  last week, Fareed Zakaria explained that the best way to approach Iran was not to ban diplomacy but to intensify it, nukes or no nukes.

Obama should return to his original approach and test the Iranians to see if there is any room for dialogue and agreement. Engaging with Iran, putting its nuclear program under some kind of supervision and finding areas of common interest (such as Afghanistan) would all be important goals.

Strategic engagement with an adversary can go hand in hand with a policy that encourages change in that country. That’s how Washington dealt with the Soviet Union and China in the 1970s and 1980s. Iran is a country of 80 million people, educated and dynamic. It sits astride a crucial part of the world. It cannot be sanctioned and pressed down forever. It is the last great civilisation to sit outside the global order. We need a strategy that combines pressure with a path to bring Iran in from the cold.

In other words, it is time for more diplomacy, not less – even if that means offending a powerful lobby that is hell-bent for war.

MJ Rosenberg is a senior foreign policy fellow at Media Matters Action Network. The above article first appeared in Foreign Policy Matters, a part of the Media Matters Action Network.


NY mayor talks tough on OWS as momentum grows


As clouds gather over the Occupy movement, with NYC Mayor Michael Bloomberg vowing to prevent Oakland-style violence, protesters told RT that momentum is growing for the cause and they are determined to stay.

A peaceful protest descended into fresh violence in the Californian city of Oakland, as police moved in to break up an Occupy rally there. At least 100 demonstrators were arrested.

Photo depicting arrests in Washington, DC, on November 5, tweeted by RT’s Lucy Kafanov
Photo depicting arrests in Washington, DC, on November 5, tweeted by RT’s Lucy Kafanov

The tough police action has also left another US army veteran badly injured, the second such incident in just over a week.

In Washington, DC, police arrested three Occupy protesters. RT’s Lucy Kafanov says it came as police actions have sparked fury after a driver who injured three protesters was allowed to leave the scene.

New York Mayor Michael Bloomberg said the Oakland-style violence will not be repeated in his city, though adding that some of the behavior seen at Zuccotti Park will not be tolerated.

That has left protesters fearing that New York police could be preparing to shut down the camps, as RT’s Marina Portnaya reports.

Mayor Bloomberg accuses the activist of endangering the entire community, saying that they are failing to report crimes that are taking place at the protest site.

At least seven people have been arrested in Zuccotti Park on non-protest-related charges, such as rape and attempted rape, since early October.

The activists say they try to police minor infractions, but when it comes to serious crimes or violence they say they do make reports to the police.

There also have been reports that some police officers encouraged criminals and homeless people to come down to Zuccotti Park in an effort to stir up some trouble. The NYPD has denied those accusations.

My experience has been that I’ve been safe here and that I feel safe here. I do think the mayor is probably gearing up to make another attempt to remove us from the park,” believes OWS activist Elizabeth Helpern.

Simply because somebody walked into the park doesn’t mean that they are part of the movement. Certainly because someone is disruptive does not mean they reflect what we are doing or that we promote what they are doing,” protester Mark Bray explained.

Princeton professor and activist Dr. Cornel West, who has been a huge supporter of the Occupy movement, has also visited Zuccotti Park. Referring to Mayor Bloomberg’s remarks he said, “I just think he’s wrong.”

I think they are trying to come up with rationalization when it is not a convincing reason,” he told RT.

Most of the activists RT’s Marina Portnaya spoke to said they feel as safe as they have felt since day one of this Occupy Wall Street movement. They say the momentum is growing larger and louder and they are there to stay.



Court: #OccupyTrenton Rights Violated, Issues Restraining Order Against State #OWS


Posted by  At Alexander Higgins Blog

The NJ Superior Court has ruled in favor of Occupy Trenton, finding New Jersey violated Constitutional Rights and ordered property be returned to the site of the Occupation.

Supreme Court Finds NJ Violated Occupy Trenton Constitutional Rights

Supreme Court Finds NJ Violated Occupy Trenton Constitutional Rights

I previously wrote several reports on the lawsuit filed against the State of New Jersey on behalf of violating the constitutional rights of Occupy Trenton.

ACLU Sues NJ for Violating 4 Constitutional Rights Of Occupy Trenton #OWS

ACLU Sues NJ for Violating 4 Constitutional Rights Of Occupy Trenton #OWS

The ACLU sues The State Of NJ, seeking a restraining order and other relief, for violating 4 Constitutional Rights of Plaintiff Alexander Higgins and Occupy Trenton.


Specifically, the lawsuit names journalist and blogger Alexander Higgins as the plaintiff and seeks relief for the violation of four following constitutional rights violations committed by the State of New Jersey against Alexander Higgins and other Occupy Trenton participants.

  • Violation of Freedom of Press: Against Alexander Higgins as a journalist and Blogger and on behalf of Occupy Trenton as a group using the Live Stream and computer equipment to publish their message .

  • Violation of Freedom of Assembly: By stealing signs and other protest material and engaging in harassment and other illegal activities to stifle the Occupation and to impose illegal rules and regulations on the occupiers.

  • Violation of Due process: By making up rules not enacted by the legislature and enforcing them (can you say dictatorship?)

  • Illegal Search and Seizure: The NJ State Police illegal stole everything from Occupy Trentonsite that was not on our immediate persons, after which they return a few signs. Most likely the State was acting on orders from their corporate overlords (can you say fascism?). The illegal theft was conducted under color of the law even though there are no laws or ordinances that authorize the State to conduct such a theft and there was no warrant from a Judge allowing the search and seizure of our property.

Read more…

In issuing the ruling, the NJ Superior Court has released a 52 page ruling, in which most issues have been reserved to be heard pending a December 19th court hearing.

Occupy Trenton’s filing requested emergent relief based on violation of due process because the State made up rules from thin air without following proper procedure to enact them as laws. The State in turn used those rules as justification to illegally steal all of Occupy Trenton’s supplies, gear and media equipment.

The NJ Superior Court has found that the State acted illegally, violating due process and issued an order prohibiting the state from enforcing those rules and regulations.

The NJ Superior Court has also  issued a temporary restraining order against the State of New Jersey prohibiting from further stealing anything from Occupy Trenton, pending further hearing and final decision on the other issues raised in litigation.

Specifically, it has been ordered that the state return everything that the police illegally stole back to the site of the Occupation by November 14th.

Here is the ruling in full.


OCCUPY TRENTON (an unincorporated organization) and ALEXANDER HIGGINS,



RAYMOND L. ZAWACKI (in his official capacity as Deputy Commissioner for Veterans Affairs in the Department of Military and Veterans Affairs), COL. RICK FUENTES (in his official capacity as the Director of the New Jersey State Police), JOHN DOES 1-11 (in their official capacities), DEPARTMENT OF MILITARY AND VETERANS AFFAIRS, and NEW JERSEY STATE POLICE,






DOCKET NO. C-72-11



Bennet D. Zurofsky, Esquire (argued)

17 Academy Street, Suite 1010

Newark, New Jersey 07102

David Perry Davis, Esquire

112 West Franklin Avenue

Pennington, New Jersey 08534

Edward Barocas, Esquire

Jeanne LoCicero, Esquire


P.O. Box 32159

89 Market Street, 7th Floor

Newark, New Jersey 07101

Attorneys for Plaintiffs

Robert Lougy, Assistant Attorney General (argued)



25 Market Street, P.O. Box 112

Trenton, New Jersey 08625-0112

Attorneys for Defendants


This matter presents the court with very sensitive issues. On one side, Plaintiffs have asserted procedural and substantive challenges to their exercise of fundamental free speech rights guaranteed to them by the New Jersey Constitution and have alleged deprivation of their property without the due process of law also guaranteed to them by the New Jersey Constitution. On the other side, Defendants have raised serious concerns regarding the proper care and respect to be afforded to Veterans Park, which contains a Memorial established to honor New Jersey’s veterans of World War II, and serious concerns about preserving accessibility of the Park to all citizens while maintaining public safety for both the demonstrators and other visitors to the Memorial. The court has analyzed and balanced these important competing concerns against applicable case law in reviewing Plaintiffs’ request for temporary relief pending further court review.

Plaintiffs are seeking temporary restraints to prevent Defendants from enforcing a letter authored by Raymond L. Zawacki, Deputy Commissioner of the Department of Military and Veterans Affairs, which established restrictions on the use of Veterans Park, restrictions that directly impact the manner in which Occupy Trenton demonstrators can use the Park as a forum for their protest. Enforcement of those restrictions has already resulted in the confiscation of property that the demonstrators claim was taken from them without due process. What the court addresses and decides in this opinion is whether the Defendants will be able to continue to enforce the restrictions contained in the letter while this lawsuit proceeds to the next phase, which is a hearing on Plaintiffs’ application for a preliminary injunction. This procedural posture means that this case is at its earliest stage with a record hastily assembled by the parties due to the exigencies of the circumstances presented.

Having reviewed that record in light of applicable state and federal precedents, the court holds that the restrictions were imposed upon Plaintiffs without first being adopted as rules or emergency rules and thus are procedurally infirm. Plaintiffs are entitled to temporary relief, but only insofar as is necessary to address their procedural due process claims pending further court review. The court will therefore issue an order that requires the Defendants to return the property taken from the Plaintiffs by November 14, 2011, and that prevents Defendants from enforcing the restrictions contained in the Zawacki letter insofar as they deal with personal property, including signs containing the messages sought to be conveyed by the demonstrators, and computers and media equipment. Given the State’s proprietary and law enforcement responsibilities for the Memorial, however, the Defendants may continue to enforce on a temporary basis the restrictions that prevent the demonstrators from using electrical outlets at the Memorial, from using a gasoline generator at the site, from erecting structures at the site, and from attaching anything to the walls of the Memorial. Moreover, the State Police, which provides security to Veterans Park, may continue its law enforcement responsibilities at the Memorial.


This action is brought by Plaintiffs, Occupy Trenton and Alexander Higgins, against the following individuals in their official capacities only: Raymond L. Zawacki, Deputy Commissioner of the Department of Military and Veterans Affairs, Col. Rick Fuentes, Superintendent of the New Jersey State Police, John Does 1-3, individuals who seized and confiscated Plaintiffs’ property on October 14, 2011, and John Does 4-11, officers of the New Jersey State Police who were present during the seizure of Plaintiffs’ property on October 14, 2011. Plaintiffs also bring suit against the Department of Military and Veterans Affairs (“DMAVA”) and the New Jersey State Police. Plaintiffs seek to enjoin the restrictions issued by DMAVA and enforced by the State Police regarding Plaintiffs’ ongoing demonstration in Veterans Park and to challenge the seizure and confiscation of Plaintiffs’ property.

Plaintiff Occupy Trenton is “an unincorporated organization that seeks to bring attention to the imbalance in our financial system and to ensure that politicians are as concerned about and responsive to citizens of our country without means or with moderate means as they are to those with the most.” Plaintiff’s Verified Complaint at ¶ 4. Occupy Trenton is an outgrowth of the “Occupy Wall Street” movement that began several weeks ago in New York City. Plaintiff’s Verified Complaint at ¶ 13. “Part of the method and message of Plaintiff is to have a continuous around-the-clock, seven-days-per-week presence until the problems concerning the economic and political systems’ failure to adequately address the needs and interests of “the 99%” who do not control the majority of wealth are responded to.” Plaintiff’s Verified Complaintat ¶ 22. Plaintiffs believe “that there is strength in the uniting and coming together of all of “the 99%” of persons who do not control the majority of the wealth . . . [and] seek to connect to and associate with other “Occupy” participants around the country and around the globe.” Plaintiff’s Verified Complaint at ¶ 23. Plaintiffs connect with other “Occupy” participants “through ‘live-streaming’ their activities on the Internet and engaging in running commentaries and ‘live chats’ on the Internet.” Ibid.Plaintiffs consider that “the computerized, Internet-based live-streaming conveyance of the protest is as important, or more important, . . . than the conveyance of their message to Trenton’s pedestrians or motorists via the holding of signs.” Ibid.

Plaintiff Alexander Higgins is a freelance journalist. Plaintiff Higgins “both participated in and, at the same time, reported on Occupy Trenton’s speech activities through live web-stream video commentary, live on-the-scene chat, and blogging.” Plaintiff’s Verified Complaint at ¶ 24. Plaintiffs contend that “[t]he use of his computer and video equipment was therefore essential to conveying his message.” Ibid.

Beginning on October 6, 2011, Plaintiffs have used Veterans Park as the forum for their Occupy Trenton demonstration. Veterans Park is a public park, “open to all persons at all times.” Plaintiff’s Verified Complaint at ¶ 15. There apparently are no permit requirements for the use of Veterans Park. Plaintiffs assert that, “[f]or many years, on many occasions before and after the World War II Memorial was placed there, Veterans Park has been used for political, social and labor demonstrations.”Plaintiff’s Verified Complaint at ¶ 18. Veterans Park is “[o]ften . . . used for the overflow of demonstrations directly in front of the State House and on West State Street . . . [or] by demonstrators who simply wish to be visible across the street from the State House rather than directly on its doorstep.” Ibid.

In 2008, a portion of Veterans Park was dedicated as a World War II Memorial (“the Memorial”). The Memorial is directly across West State Street from, and within approximately 100 feet of, the State House Complex. Brosnan Certification at ¶ 3. “The Memorial is easily accessible from nearby streets and roads. There is no fence or other barrier that encompasses the perimeter of the Memorial.” Brosnan Certification at ¶ 2. Defendants state that due to the open layout of the Memorial, “there is no practical way that the State Police can control who enters and leaves the site.” Ibid.

The Memorial consists of:

a rotunda with a statue of Lady Victory in the center. Surrounding the Lady Victory statue is open pedestrian space, which is in turn surrounded by large amphitheater stepped-seating. Outside of the stepped-seating is more open pedestrian space, on the outsides of which are ledges. Further in from the ledges are plaques and story walls. The statue and story walls are part of the World War II Memorial on site. On the back half of the park (abutting Capital Street) are more pedestrian walkways, along with seating areas, bushes and more sculptures as part of the memorial. [Plaintiff’s Verified Complaint at ¶ 17].

The Memorial honors “over twelve thousand citizens from New Jersey [who] lost their lives fighting for their country during World War II, and [the] countless others [who] were wounded in or endured the hardships of the conflict.” Zawacki Certification at ¶ 3. “The Memorial stands as a timeless reminder of the heroism, spirit, sacrifice, patriotism and commitment of those who defended this country and of the moral strength and power of a free people who are united in a common and just cause.” Zawacki Certification at ¶ 4. DMAVA acts as the custodian of the Memorial, ensuring the “right of accessibility to all members of the general public . . . . [and] the safety of those who wish to enjoy the Memorial, while maintaining the aesthetic value of the site.” Zawacki Certification at ¶ 5. DMAVA states that it “has never permitted behavior at the Memorial that would detract from its intended purpose.” Zawacki Certification at ¶ 6. Activities such as recreational camping, including the use of tents and coolers, “erecting any temporary or permanent structures at the Monument, . . . [and] affix[ing] or attach[ing] anything to the walls of the Monument” have not been permitted by DMAVA. Zawacki Certification at ¶¶ 6-7. DMAVA maintains that “[p]atrons of the Monument are required to attend to items of personal property which are brought to the Monument, and unattended items are considered to be abandoned or trash.” Zawacki Certification at ¶ 7. “DMAVA maintains electrical outlets at the Memorial . . . for [use by] those officially authorized to operate maintenance equipment related to the upkeep of the property and for other official activities in keeping with the Memorial’s public purpose.” Zawacki Certification at ¶ 8. DMAVA contends that “the use of power generators by members of the public to operate heavy equipment poses a safety concern and is inconsistent with the peaceful enjoyment of the Memorial.” Ibid.

According to State Police Captain Neil Brosnan, he learned in early October 2011 that a group similar to or associated with Occupy Wall Street was planning similar demonstrations in both Jersey City and in Trenton, New Jersey, to begin on October 6, 2011. Brosnan Certification at ¶ 4. Captain Brosnan “placed a number of State Police on standby to ensure that there would be adequate security for the demonstrations.” Ibid.

Plaintiffs selected Veterans Park due to its location “directly across the street from the Statehouse, [which makes] it an appropriate and effective public forum at which Occupy Trenton can convey its message.” Plaintiff’s Verified Complaint at ¶ 14. Plaintiffs have maintained a continuous, around the clock, presence in Veterans Park since October 6, 2011. At any time, there have been from one to twenty participants in the Occupy Trenton demonstration. Plaintiffs claim that they have not been sleeping in the park, but have instead rotated in participants to maintain their 24 hour a day, seven day a week presence. Plaintiffs’ demonstration has been located mainly “right near the rotunda, on a seating section of the stepped-seating, or at a section of one of the ledges.” Plaintiff’s Verified Complaint at ¶ 21. Plaintiffs have attempted to “[position] themselves and their property so as not to obstruct other pedestrians’ usage of or passage through the park.” Ibid. Plaintiffs keep additional signs “at the site so as to be available for use of additional participants and supporters who show up.” Ibid. Occupy Trenton participants brought with them computers and video equipment, as well as a wide array of items, including coolers, pup-tents, small medical supplies, tables, chairs, and tarps. Plaintiffs maintain that “given the size of the park and of the pedestrian walkways, none of the activities engaged in by Occupy Trenton, even at their peak of participation, obstructed the use of the park by other persons.” Plaintiff’s Verified Complaint at ¶ 26.

Plaintiffs “began congregating at the Memorial” on October 6, 2011 at approximately 2:00 p.m. Plaintiffs’ demonstration consisted of “a few signs, drums, chairs and computer equipment.” Brosnan Certification at ¶ 5. Captain Brosnan states that, at this time, no items were left unattended and there were “no large items such as furniture and coolers on site.” Ibid. State Police monitored the Plaintiffs’ demonstration to maintain security and ensure the safety of all participants and the public.

On October 7, 2011, Brigadier General James J. Grant, Chief of the Joint Staff, NJ Army National Guard, sent a letter to Lieutenant Richard Finneran of the State Police stating that DMAVA is responsible for the care and maintenance of the World War II Memorial at Veterans Park and asserting that DMAVA “has not authorized the use of electricity, camping, or group assembly on the facility.” Lougy Certification, Exh. B. On October 7, 2011, at approximately 6:30 p.m., State Police asked the demonstrators if they would accept a permit and move to the State Capital Complex grounds. Plaintiffs initially agreed, “but then declined the offer of a permit upon presentation of the same at 7:00 p.m.” Brosnan Certification at ¶ 7. At this time, State Police first observed that Plaintiffs were using electrical outlets from the Memorial. Plaintiffs used these outlets to power their media equipment. They contend that “[t]here were no signs or regulations that prohibited public use of these outlets.”Plaintiff’s Verified Complaint at ¶ 27. State Police “advised the group to cease the use of any electricity on the site and explained that the electricity was intended only to power maintenance equipment at the World War II Memorial.” Brosnan Certification at ¶ 8. The utility bills for the Memorial are paid by the State. Plaintiffs were advised not to use the electricity and that “further attempts to use the same would require law enforcement action.” Ibid.

From October 8th through October 12th, Plaintiffs gradually increased their physical presence at the Memorial. Some Occupy Trenton participants brought with them food, coolers, medical supplies, small pup-tents, tarps, collapsible chairs, and small tables for their use during their demonstration. Defendants note that “[o]n Ocotber 11, 2011, plaintiffs had brought multiple cushions, an inner tube, a table set up as a ‘food station’, a ‘medical station’, and several laptop computers.” Brosnan Certification at ¶ 11. Defendants state that by October 12, 2011, Plaintiffs’ equipment on the site increased further and included coolers, large “Tupperware” style bins, an eight foot by eight foot canopy-type structure, an old couch, and “a generator with a gasoline can located directly next to it.” Brosnan Certification at ¶ 15.

Plaintiffs claim that these materials did not obstruct the public’s access or use of the park, but Defendants state that “the numerous large items brought by plaintiffs physically blocked public access to the Memorial and obstructed the public’s use and enjoyment of the Memorial.” Brosnan Certification at ¶ 13. Further, Defendants state that “[c]losed tents in an open area present special security problems,” Brosnan Certification at ¶ 10, and that “[t]he large amounts of equipment and materials that had arrived on site presented new significant safety and health concerns given the Memorial’s proximity to the State House Complex.” Brosnan Certification at ¶ 14.
Defendants state that Plaintiffs continued to use the Memorial’s electrical outlets. Further, Defendants claim that Plaintiffs said they were relying on battery back up, but that investigation showed that Plaintiffs “had covered the extension cords and the outlet box with mulch in an attempt to conceal [their usage].” Brosnan Certification at ¶ 12.

On October 12, 2011, when it began to rain, Occupy Trenton participants used a tarp to cover themselves and their property. Defendants state that at approximately 8:00 a.m. they told Plaintiffs to take down sleeping tents and an eight foot by eight foot canopy structure they had erected. Defendants state that Plaintiffs only removed the tents but left the canopy. Plaintiffs claim that they “were informed by Defendants that anything showing ‘signs of permanence’ had to be taken down, which included the covering. Plaintiffs removed the covering.” Plaintiff’s Verified Complaint at ¶ 28.

At some point on October 12, 2011, “DMAVA’s private contractor turned off the power to the outlets at the memorial.” Brosnan Certification at ¶ 17. In response, Plaintiffs began to use a small generator to power their media equipment. Plaintiffs represented to the court that they keep this generator on the sidewalk, which is property of the City of Trenton. They state that they have received no objection from the City of Trenton regarding its use. Gasoline, kept in a can, is used to power this generator.

On October 13, 2011, DMAVA notified the State Police that the site’s expanding use into a permanent-looking campground was interfering with public access to the site. DMAVA provided a letter to the State Police outlining DMAVA’s “rules” for use of the site. Brosnan Certification at ¶ 18. The letter was signed by Raymond L. Zawacki, Deputy Commissioner for Veterans Affairs. The State Police orally communicated the rules in the letter to Plaintiffs at approximately 4:30 p.m. on October 13, 2011. The rules stated that Plaintiffs “could continue their demonstration at the site, but in doing so they would be allowed to have in their possession only items pertaining to personal sustenance, or signs, placards, etc. being held or attended.” Brosnan Certification at ¶ 19. Plaintiffs requested a copy of the letter, but none was provided at that time. Defendants claim that “[t]hese guidelines are consistent with the rules applicable to demonstrations on the State Capital Complex grounds,”Brosnan Certification at ¶ 19, but no citation to or copy of these rules was provided to the court.

Plaintiffs were given until 5:30 p.m. to comply with the rules. At 5:30 p.m. Captain Brosnan and Richard Finneran of the State Police went to the Memorial and “advised the group that all unattended items and camping equipment must be removed.” Brosnan Certification at ¶ 20. Plaintiffs stated their intent to comply and that they were attempting to gather additional support in order to do so. Defendants provided Plaintiffs with additional time to comply. Defendants returned to the site at 7:00 p.m. and again advised Plaintiffs that they needed to remove unattended items and camping equipment. Defendants noted that Plaintiffs “had made progress in removing items, [but] numerous [items] remained on site.” Brosnan Certification at ¶ 21. Defendants offered Plaintiffs the use of a well-lit parking space, monitored by security cameras, for storage until they “could make proper arrangements for the removal of [their items].” Brosnan Certification at ¶ 21. Plaintiffs declined this offer. Defendants gave Plaintiffs until 12:00 p.m. on October 14, 2011 to comply with the letter and told them “that anything unattended would be considered abandoned and subsequently removed.” Ibid.

On October 14, 2011, Defendants returned to the Memorial. They “observed two piles of equipment and numerous signs left unattended.” Brosnan Certification at ¶ 22. Defendants provided additional warnings to Plaintiffs at 8:00 a.m., 9:00 a.m., and 10:00 a.m. that unattended items would be deemed abandoned and removed. Plaintiffs state that because “they were never provided with written rules that they could identify as having the force of law, Plaintiffs did not remove ‘picnicking’ and other items.” Plaintiffs’ Verified Complaint at ¶ 31.

At approximately 12:30 p.m., “the independent contractor who oversees the maintenance of the World War II Memorial arrived to remove all unattended/abandoned items.” Brosnan Certification at ¶ 23. Plaintiffs contend that these items “were seized . . . over Plaintiffs’ objection.” Plaintiffs’ Verified Complaint at ¶ 32. “Included among the items taken were Plaintiff Higgins’ computer, another Occupy Trenton participant’s computer, other media equipment, tripods, backpacks, umbrellas, rain gear, and additional property.” Ibid. Plaintiffs claim that an unidentified individual began to take away Plaintiffs’ political signs and that a “State Police officer stated [that] the signs should not be taken.” Plaintiffs’ Verified Complaint at ¶ 33. Plaintiffs state that some, but not all, of the signs were returned to Plaintiffs. During oral argument, Defendants stated that unattended signs were taken because they were blowing into the street and posed a threat to traffic. Plaintiffs state that “[d]uring the seizure of their items, Plaintiffs were present and were questioning why and how their property could be taken.” Plaintiffs’ Verified Complaint at ¶ 34. Plaintiffs state that they made “clear that the items being seized were not abandoned items but were the property of Plaintiffs.” Ibid.

The items collected by Defendants were put into a truck and driven to a Department of Treasury warehouse. Plaintiffs were notified that the “items could be claimed at the warehouse during business hours at any time that day, or Monday or Tuesday of the following week.” Brosnan Certification at ¶ 23. Plaintiffs have not yet retrieved their items.

Defendants state that “[r]egularly and repeatedly, the group is reminded of DMAVA’s rules for use of the Memorial. Nonetheless, unattended items remain at the site.”Brosnan Certification at ¶ 24. Defendants claim that “[t]he continuing need to monitor the site and remind the group of these rules is becoming a significant drain on limited State Resources.” Ibid.

On October 17, 2011, Plaintiffs’ counsel received a copy of the letter, containing the “rules,” dated October 13, 2011. Plaintiffs state that on October 21, 2011 they were told by a State Police officer to “remove all coolers, tables, and ‘picnic’ items or the items would be confiscated at noon on Monday, October 24, 2011. The officer also informed Plaintiffs that they would remove any chair that someone was not sitting in.” Plaintiffs’ Verified Complaint at ¶ 40. At this time, Defendants told Plaintiffs to remove the gas can for the generator. Plaintiffs responded by offering to keep the gas can off state property.

Plaintiffs continue to use Veterans Park for their demonstration but claim that they are being irreparably harmed by the restrictions imposed upon their efforts to convey their message and the deprivation of their property.

Plaintiffs contend that they are being treated unfairly by Defendants based on the content of their speech. Plaintiffs cite a recent demonstration in Veterans Park by NJ-CAN that encountered no responsive action by DMAVA or the State Police. On August 8, 2011, NJ-CAN held a demonstration in Veterans Park. Prior to the demonstration, NJ-CAN inquired about permit requirements and “advised the police that they intended to set up at least one table to distribute literature, a microphone with an amplifier, and to also erect a temporary canopy if there was inclement weather.” Plaintiff’s Verified Complaint at ¶ 19. “NJ-CAN was . . . informed by the State that there was no permit requirement, no restrictions on erecting tables or a canopy, and no rules or regulations governing the use of the Veterans Park with the exception that NJ-CAN ‘clean up after’ and ‘show respect.’” Ibid. On August 8, 2011, NJ-CAN held its demonstration and except for a “brief initial inquiry” from the State Police, “the State Police did not interfere with NJ-CAN’s activities in any way.” Plaintiff’s Verified Complaint at ¶ 20. NJ-CAN “set up a table for the distribution of literature and spread signs all around Veterans Park, many of which were not held by or even close to any of the demonstrators.” Ibid.

Plaintiffs argue that DMAVA lacks authority to regulate or control Veterans Park. Further, Plaintiffs argue that these new restrictions are rules that need to be promulgated under the Administrative Procedure Act (“APA”) before being applied to them, and that failure to do so violates their due process rights under Article I, Paragraph 1 of the New Jersey Constitution. Plaintiffs claim that the seizure of their media equipment unlawfully interfered with their right to free speech and expression under Article I, Paragraph 6 of the New Jersey Constitution. Plaintiffs claim that their property was unlawfully seized in violation of Article I, Paragraph 7 of the New Jersey Constitution. Plaintiffs claim that their right to freedom of assembly was violated under Article I, Paragraph 18 of the New Jersey Constitution. Plaintiffs seek declaratory relief that the provisions of the October 13, 2011 letter are invalid and unenforceable, preliminary and permanent injunctive relief, return of their seized items, and attorneys’ fees and costs.

Procedural History

On October 21, 2011, Plaintiffs notified the court of their intent to file an Order to Show Cause pertaining to their demonstration. The court agreed in advance to hear the application for temporary relief on October 26, 2011 at 3:00 P.M. Plaintiffs provided the court with a copy of their verified complaint and brief on October 25, 2011 at approximately 1:00 P.M. Defendants provided the court with their brief on October 26, 2011 at approximately 10:00 A.M. On October 26, 2011, Plaintiffs provided the court with a reply brief at approximately 1:00 P.M. and Defendants sent a sur-reply at approximately 2:00 P.M.2 Plaintiffs filed this Order to Show Cause on October 26, 2011 seeking temporary, preliminary, and permanent injunctive relief with regard to the use of Veterans Park for demonstrations. Oral argument on Plaintiffs’ application for temporary relief pending further consideration of their claims was heard on October 26, 2011 at 3:00 P.M. The court reserved its decision on the application.


  1. Transfer to the Appellate Division

Defendants argue that any challenge to agency action or inaction must be brought before the Appellate Division under R. 2:2-3 and that, accordingly, this matter should be transferred to the Appellate Division under R. 1:13-4. R. 2:2-3 addresses appeals to the Appellate Division from final judgments, decisions, actions and from rules. Under R. 2:2-3(a)(2), appeals may be taken to the Appellate Division as of right “to review final decisions or actions of any state administrative agency or officer, and to review the validity of any rule promulgated by such agency or officer . . .” R. 2:2-3(a)(2). The rule “contemplate[s] that ‘every proceeding to review the action or inaction of a state administrative agency [shall] be by appeal to the Appellate Division.” Hospital Center at Orange v. Guhl, 331 N.J. Super. 322, 329 (App. Div. 2000)(first alteration added, second alteration and emphasis in original). The term “action” includes inaction. Ibid. (citing Mathews v. Finley, 46 N.J. Super. 175, 177 (App. Div.),certif. denied, 25 N.J. 283 (1957)). The Appellate Division has “exclusive jurisdiction” for matters involving inaction. Ibid. (citations omitted).

New Jersey courts, however, have recognized exceptions that allow trial court jurisdiction over administrative agency actions. While some courts had allowed trial court jurisdiction where the authority of the state administrative agency was confined to a single locality, Colon v. Tedesco, 125 N.J. Super. 446, 449-50 (Law Div. 1973)(citingBaldwin Construction Co. v. Essex Cty. Bd. of Taxation, 27 N.J. Super. 240 (App. Div. 1953), rehearing den., 28 N.J. Super 110 (App. Div. 1953), aff’d, 16 N.J. 329 (1954)), that exception was rejected by the Supreme Court of New Jersey in Infinity Broadcasting Corp. v. New Jersey Meadowlands Commission, 187 N.J. 212, 224 (2006), and is no longer viable. Trial level jurisdiction is authorized, however, “when the proposed administrative action has not been preceded by the creation of some agency record amenable to appellate review.” Cohen v. Bd. of Tr. of the Univ. of Med. & Dentistry of N.J., 240 N.J. Super. 188, 198 (Ch. Div. 1989)(citing State Farm v. Dept. of Pub. Advo., 227 N.J. Super. 99, 132 (App. Div. 1988); Montclair Tp. v. Hughey, 222 N.J. Super. 441, 446 (App. Div. 1987)). In Infinity Broadcasting, the New Jersey Supreme Court addressed this exception and held that it applies to cases “where a record must be developed as a prerequisite to meaningful appellate review of the state agency action.” Infinity Broadcasting, supra, 187 N.J. at 225. The third type of exception is an action in lieu of prerogative writ, which seeks to compel the performance of a ministerial duty of an agency or officer. Cohen, supra, 240 N.J. at 199. A party filing an action in lieu of prerogative writ must “. . . establish that the ministerial duty to be performed by the officer is set forth in language [is] so clear and unmistakable as to be without any doubt as to the meaning thereof.” Duke Power Co. v. Patten, 20 N.J.42, 51 (1955)(internal citations omitted). “A ministerial act is one which public officials are required to perform upon a given state of facts in a prescribed manner, in obedience to the mandate of legal authority and without regard to their own judgment or opinion concerning the propriety or impropriety of the act to be performed.”Case v. Daniel C. McGuire, Inc., 53 N.J. Super. 494, 498 (Ch. Div. 1959)(citing State v. Winne, 21 N.J. Super. 180, 199 (Law Div. 1952).

Here, to the extent that this action can be characterized as a review of agency action (or inaction), this case falls within the second exception. There is no adequate agency record available for the Appellate Division to review. The only agency items provided to the court are a letter dated October 7, 2011 from Brigadier General James J. Grant, Chief of the Joint Staff, NJ Army National Guard to Lieutenant Richard Finneran of the New Jersey State Police stating that DMAVA is responsible for the World War II Memorial at Veterans Park and a letter from DMAVA, “To whom it may concern,” dated October 13, 2011, setting forth restrictions on demonstrations at Veterans Park. There is no agency record of Plaintiffs’ activities, only the record that has been established through verified pleadings and certifications filed with this court. A record of Plaintiffs’ conduct is essential to evaluate their claims that government action has violated their constitutional rights. Because there is an insufficient agency record for appellate review, the court denies Defendants’ motion to transfer Plaintiffs’ Complaint to the Appellate Division.

  1. Plaintiffs’ Claim for Temporary Restraints

“[T]he power to issue injunctions is the strongest weapon at the command of a court of equity, and its use, therefore, requires the exercise of great caution, deliberation, and sound discretion.” Light v. Nat’l Dyeing & Printing Co., 140 N.J. Eq. 506, 510 (Ch. 1947). Additionally, “the granting or refusal of a preliminary injunction whether mandatory or preventative, calls for the exercise of a sound judicial discretion in view of all the circumstances of the particular case.” Harriman v. N. Sec. Co., 132 F. 464, 475 (C.C.D.N.J. 1904), rev’d on other grounds, 134 F. 331 (3d Cir. 1905). “The legitimate object of a preliminary injunction, preventative in its nature, is the preservation of the property rights in controversy until the decision of the case on a full and final hearing upon the merits, or the dismissal of the bill for want of jurisdiction or other sufficient cause.” Ibid. An “injunction is merely provisional” and does not “finally conclude the rights of parties, whatever may be its practical operation under exceptional circumstances.” Ibid. In determining whether to grant injunctive relief, a court should balance the conveniences or hardships of the parties where there is “substantial doubt” as to whether to grant or deny relief. Ibid.

In order to secure such extraordinary relief, a plaintiff must demonstrate that (1) the injunctive relief is necessary to prevent irreparable harm; (2) the legal right underlying the plaintiff’s claim is settled; (3) the material facts are uncontroverted and demonstrate a reasonable probability of ultimate success on the merits; and (4) the relative hardship to the parties favors granting the relief. Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982). While “each of these factors must be clearly and convincingly demonstrated,” Waste Mgmt. of N.J., Inc. v. Union County Utils., 399 N.J. Super. 508, 520 (App. Div. 2008) (citations omitted), “a court may take a less rigid view than it would after a final hearing when the interlocutory injunction is merely designed to preserve the status quo.” Id. (citing Gen. Elec. Co. v. Gem Vacuum Stores, Inc., 36 N.J. Super. 234, 236-37 (App. Div. 1955). Further, a court must “exercise sound judicial discretion . . . which­when limited to preserving the status quo during the suit’s pendency­may permit the court to place less emphasis on a particular Crowe factor if another greatly requires the issuance of the remedy.” Ibid. (citations omitted).

Here, Plaintiffs are seeking a temporary restraining order to prevent Defendants from enforcing the restrictions imposed on their demonstration by DMAVA pending consideration of Plaintiffs’ application for a preliminary injunction. The court will apply the Crowe test to this application.

  1. Irreparable Harm

Harm is generally considered irreparable if it cannot be redressed adequately by monetary damages after the fact, Crowe, supra, 90 N.J. at 133, or there exists no certain pecuniary standard for the measurement of damages. Scherman v. Stern, 93 N.J. Eq. 626, 631 (E. & A. 1922). The irreparable harm must be imminent, concrete, non-speculative, and the harm must occur in the near, not distant future. Subcarrier Commc’ns., Inc. v. Day, 299 N.J. Super. 634, 638 (App. Div. 1997). The likelihood that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.Delaware River & Bay Auth. v. York Hunter Constr., 344 N.J. Super. 361, 65 (Ch. Div. 2001) (citing Sampson v. Murray, 415 U.S. 61, 90 (1974)). “In other words, plaintiff must have no adequate remedy at law.” Subcarrier Commc’ns. Inc., supra, 299 N.J. Super. at 638.

Plaintiffs argue that the restrictions imposed by DMAVA and enforced by the State Police interfere with their right to free speech. Plaintiffs argue that any loss of free speech rights, however minimal the time period, constitutes an irreparable and immediate harm. Davis v. New Jersey Dept. of Law, 327 N.J. Super. 59, 68-69 (Law Div. 1999) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)).3 Both of these cases address restrictions on the political expression of government employees. Elrod addressed issues of political party affiliation at a Sheriff’s Office – in particular patronage dismissals (Elrod, supra, 427 U.S. at 349), and Davis addressed the right of members of the State Police to “speak in their private capacities about non-confidential matters of public concern.” Davis, supra, 327 N.J. Super. at 64. Although the substance of these cases is not directly on point, they stand for the proposition that any improper limitation on free speech constitutes irreparable harm. Defendants do not dispute that argument. Their defense to the temporary restraint sought by Plaintiffs is that the governmental action was proper.

In addition, Plaintiffs argue that there is irreparable harm in the ongoing threat of the seizure of their property, in particular any item that is left ‘unattended.’ The confiscation and resulting deprivation of their property can be considered irreparable harm if Plaintiffs can show that the property was taken without due process.

Defendants argue that Plaintiffs have not shown irreparable harm because they have been allowed to continue their demonstration. Indeed, it appears that Occupy Trenton has continued peaceful free speech activities at Veterans Park throughout the pendency of this litigation. Defendants also argue that there is no irreparable harm because DMAVA’s rules have placed reasonable time, place, and manner restrictions on the demonstration that satisfy constitutional law. Defendants argue that having coolers, tables, chairs, generators, and other items prohibited by the letter is not “expressive conduct” and consequently disallowing such items at the Park does not burden the free expression of speech. Plaintiffs stated in their brief and at oral argument that part of their mission is to “occupy” Veterans Park and that these now prohibited items are central to their mission and thus constitute expressive conduct. If Plaintiffs can show that Defendants’ actions are infringing their right to free speech or deprived them of property without due process, they will have met the requirement of demonstrating irreparable harm. The merits of those claims are discussed below.

  1. Well-Settled Legal Right

Second, preliminary injunctive relief such as a temporary restraint should only be granted when the issues raised present a legally settled right. Crowe, supra, 90 N.J. at 133 (citing Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J. Eq. 299, 304-05 (E. & A. 1878)). Despite this general rule, an exception exists “where the subject matter of the litigation would be destroyed or substantially impaired if a preliminary injunction did not issue.” Gen. Elec. Co. v. Gem Vacuum Stores, Inc., 36 N.J. Super. 234, 236 (App. Div. 1955).

Plaintiffs rely on well-settled legal rights under the New Jersey Constitution: due process rights under Article I, Paragraph 1 and Article 5, Paragraph 4, Section 6; the rights to free speech and expression under Article I, Paragraph 6, and assembly under Article I, Paragraph 18; and the protection from unlawful seizure of property under Article I, Paragraph 7 of the New Jersey Constitution.

It is beyond dispute that the government may not enact a content-based restriction on speech without meeting strict scrutiny. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294 (1984) (“CCNV II”) (citing United States v. O’Brien, 391 U.S. 367 (1968)). However, a reasonable content-neutral time, place, and manner restriction is permissible, so long as it meets intermediate scrutiny. Id. at 293. Although the level of scrutiny applied varies, there is a well-settled right to relief from government regulations that burden free speech and expression. Here, Veterans Park, including the World War II Memorial, is a traditional public forum. Any content-based regulations are subject to strict scrutiny and any content-neutral regulations must meet intermediate scrutiny.

It is also well-settled that the government may not conduct an unlawful search and seizure without justification, New Jersey Constitution, Article I, Paragraph 7, or deprive citizens of their property without due process.

Plaintiffs’ primary procedural challenge is based on their claim that an administrative rulemaking must be undertaken here in accord with the Administrative Procedure Act (“APA”) or the action violates due process. It is well settled that agency rulemaking must comply with the APA. See Woodland Private Study Group v. State of New Jersey, 109 N.J. 62, 65 (1987). Conversely, an informal agency action need not comply with the APA. See Coalition for Quality Health Care v. New Jersey Dept. of Banking and Ins., 348 N.J. Super. 272, 295 (App. Div. 2002). Where agency action is required to comply with APA rulemaking procedures, however, failure to do so constitutes grounds to invalidate the agency action. See Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313, 338 (1984); Bd. of Educ. v. Cooperman, 209 N.J. Super. 174, 202 (App. Div. 1986). Article 5, Section 4, Paragraph 6 of the New Jersey State Constitution states that, “No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law.” This requirement is echoed in the APA, which states that, “No rule hereafter adopted is valid unless adopted in substantial compliance with P.L.1968, c.410 (C.52:14B-1 et seq.).” N.J.S.A. 52:14B-4(d). Failure to promulgate a rule in accord with proper procedure renders the proposed rule ineffective. Plaintiffs have thus met the burden of demonstrating that well-settled legal rights underlie their claims.

  1. Likelihood of Success on the Merits

The third element of the Crowe test requires denial of a preliminary injunction if all the material facts are controverted. Crowe, supra, 90 N.J. at 133 (citing Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J. Eq. 299, 305-06 (E. & A. 1878)). Here, while the record shows some possible disputes of fact, the court is satisfied that there are no material disputes of fact that would preclude temporary relief. Coupled with this requirement is that, to prevail on such an application, a plaintiff must demonstrate a reasonable probability of success on the merits of its claim. Ibid. (citing Ideal Laundry Co. v. Gugliemone, 107 N.J. Eq. 108, 115-16 (E. & A. 1930)); see also Waste Mgmt. of N.J., supra, 399 N.J. Super. at 528-29 (finding that the “plaintiff failed to demonstrate by clear and convincing evidence a reasonable probability of success because the present state of the law” highly favored the defendant’s position and the material facts advocated by the defendants were well-founded). Crowe cautions, however, that this “requirement is tempered by the principle that mere doubt as to the validity of the claim is not an adequate basis for refusing to maintain the status quo.” 90 N.J.at 134 (internal citations omitted).

  1. Procedural Issues: Violations of the Administrative Procedure Act and Due Process

Plaintiffs argue that DMAVA’s letter violated due process under Article 5, Section 4, Paragraph 6 of the New Jersey Constitution. They argue that DMAVA lacked the authority to issue the rules in the October 13, 2011 letter. In the alternative, they argue that even if DMAVA had the authority to regulate activities in Veterans Park, this letter was not promulgated in accord with proper administrative procedure. Finally, Plaintiffs argue that even if the letter was properly issued, it is fatally vague and overbroad. Defendants counter that the provisions of the letter constituted “reasonable guidelines” that are neither rules nor regulations and thus do not need to meet the standards of the APA. Further, Defendants argue that, in issuing the letter, the State, through DMAVA, was acting in its proprietary capacity as the owner of Veterans Park, not in its regulatory capacity, thus removing its actions from the scope of the APA.

  1. Authority for DMAVA to Act

Plaintiffs argue that DMAVA lacks authority to issue regulations pertaining to the use of Veterans Park and the World War II Memorial. Plaintiffs argue that DMAVA was given the power to establish the War Memorial under N.J.S.A. 38A:3-2.4, Executive Order 107 (Gov. McGreevey), and Executive Order 45 (Gov. Corzine), but not to regulate free speech activities at the site. Defendants state that “DMAVA is responsible for the care and maintenance of the Memorial,” Defendants’ Brief at 21, an assertion supported by the certification of Raymond L. Zawacki, which states that “[t]he property on which the Memorial is located is state-owned, and DMAVA maintains custodial responsibilities for this landmark. . .” Zawacki Certification at ¶ 2. During oral argument Plaintiffs alleged, and Defendants did not refute, that there is no statutory authority assigning custodial responsibility for Veterans Park or the World War II Memorial to DMAVA.

Captain Brosnan did state in his certification, however, that DMAVA’s guidelines for the Park were “consistent with the rules applicable to demonstrations on the State Capital Complex grounds.” Brosnan Certification at ¶ 19. He did not provide a copy of these rules. Although the court could not locate the rules in its research, it did find references to the State Capitol Joint Management Commission, a legislative commission established under N.J.S.A. 52:31-37. See also State Capitol Joint Management Commission, http://www.njleg.state.nj.us/committees/stcapjt.asp. The State Capitol Joint Management Commission consists of eight members, four from the executive branch and four from the legislative branch. Ibid. The State Capitol Joint Management Commission may only take action by “affirmative vote of a majority of the authorized membership of the commission. No motion to take any action by a subcommittee shall be valid except upon the affirmative vote of a majority of the authorized membership of the subcommittee.” N.J.S.A. 52:31-38(b). Under the statute, “any subcommittee may call upon the assistance of any office or employee within the executive or legislative branch, and may delegate to any office or employee specific authority to act on behalf of the commission or subcommittee.” N.J.S.A. 52:31-38(c).

The State Capitol Joint Management Commission is charged with the responsibility to “maintain custody of the State capitol complex, with exclusive jurisdiction with respect to its management and operation, including maintenance, repair, renovation, improvement, security, parking, furnishing, artifact displays, and space utilization.”N.J.S.A. 52:31-39(a)(2). The “State Capitol Complex” is defined as “the State House, the State House Annex, any ancillary structures, facilities or components that are integral to the operation or use of the State House or State House Annex, and the adjacent public grounds, walkways, driveways and parking areas.” N.J.S.A. 52:31-36(a). The State Capitol Joint Management Commission has the power to “enter into agreements with other State agencies or private vendors for the performance of any function or the provision of any service relating to the custody, management or operation of the State capitol complex,” N.J.S.A. 52:31-40(a), or “enter into agreements with any State agency with respect to the joint management and use of facilities or systems which serve both the capitol complex and buildings under the custody of the agency.” N.J.S.A. 52:31-40(b). Defendants did not provide the court with a copy of any agreement transferring custodial responsibility for Veterans Park to DMAVA.

DMAVA is “a principal department in the executive branch of the State Government.” N.J.S.A. 38A:3-1. DMAVA has the authority to promulgate regulations under the APA. N.J.S.A. 38A:3-2.2. DMAVA has the authority to solicit, collect, and distribute funds for the World War II Veterans’ Memorial Fund. N.J.S.A. 38A:3-2.4; N.J.S.A.38A:3-2.5.

Veterans Park and the World War II Memorial are within the State Capitol Complex. See Visit The New Jersey Capitol Complex Guide,http://www.njleg.state.nj.us/legislativepub/ Visit_Complex_Guide.pdf. A commission for the World War II Memorial was first established in 2004 by Executive Order 45. The commission’s term was extended by Executive Order 107. The World War II Memorial was completed in 2008 and dedicated on November 11, 2008. See WWII Memorial Dedication Ceremony, http://www.nj.gov/military/veterans/wwii_memorial /site_dedication.html. Executive Order 107 states that the Department of Military and Veterans Affairs and the World War II Memorial Commission “shall . . . [f]ormulate and recommend any legislation the Commission determines to be essential to the furtherance of the World War II Memorial.” Executive Order 107 ¶ 4(c). While the Commission in charge of the Memorial had the authority to recommend legislation, none has been adopted to date. Nor have the Defendants cited any published laws, rules, or ordinances governing the use of Veterans Park or the World War II Memorial.

Under its enabling statutes, the State Capitol Joint Management Commission could, by agreement, grant DMAVA the authority to regulate Veterans Park. At this early stage of this litigation, as noted above, no evidence has been presented of any agreement delegating authority from the State Capitol Joint Management Commission to DMAVA. What the court has are certifications from Mr. Zawacki and Captain Brosnan stating that DMAVA has custodial responsibility for the Park. The absence of clear authority for DMAVA to act supports the Plaintiffs’ claims on the record presently before the court.

  1. Procedural Requirements for DMAVA to Act

Assuming arguendo that DMAVA has custodial responsibility for the use of the World War II Memorial and Veterans Park, Plaintiffs also argue that Defendants have failed to follow proper procedure in issuing “rules” governing activities in the Park. Plaintiffs argue that the October 13, 2011 letter restricting Plaintiffs’ use of Veterans Park was an administrative rulemaking carried out in violation of the APA and due process. Defendants counter that DMAVA’s letter is an informal agency action taken in its “proprietary” capacity to control activities on the State’s property, which action does not require rulemaking.

An administrative rule is defined under the APA as an “agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency.” N.J.S.A. 52:14B-2(e). The New Jersey Supreme Court has defined informal agency action as “any determination that is taken without a trial-type hearing, including investigating, publicizing, negotiating, settling, advising, planning, and supervising a regulated industry.” Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 136-137 (2001). It is well-established that agencies are granted broad discretion in determining whether to act through adjudication, rulemaking, or informal action and “enjoy a great deal of flexibility in selecting the proceedings most likely to achieve their regulatory aims.” State, Dep’t of Environmental Protection v. Stavola, 103 N.J. 425, 436-437 (1986) (citing Securities and Exch. Comm’n v. Chenery Corp., 332 U.S.194, 202-03 (1947); Department of Labor v. Titan Constr. Co., 102 N.J. 1, 13 (1985); Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313 (1984); Crema v. New Jersey Dep’t of Envtl. Protection, 94 N.J. 286, 299 (1983); Bally Mfg. Corp. v. New Jersey Casino Control Comm’n, 85 N.J. 325, 338 (1982) (Handler, J., concurring)). Agency discretion in selecting the form of action has limits, however. Ibid. (citing Crema, supra, 94 N.J. at 299).

Even prior to the adoption of the Administrative Procedure Act, the New Jersey Supreme Court emphasized that, “without sufficiently definite regulations and standards administrative control lacks the essential quality of fairly predictable decisions.” Boller Beverages, Inc. v. Davis, 38 N.J. 138, 152 (1962). “Rulemaking allows the agency to further the policy goals of legislation by developing coherent and rational codes of conduct ‘so those concerned may know in advance all the rules of the game, so to speak, and may act with reasonable assurance.’” General Assembly of New Jersey v. Byrne, 90 N.J. 376, 385-86 (1982)(quoting Boller Beverages Inc., supra, 38 N.J. at 152). In keeping with this broad concern, the New Jersey Supreme Court has “on several occasions invalidated the actions of administrative agencies when there was a significant failure to provide either statutory or regulatory standards that would inform the public and guide the agency in discharging its authorized function.” Lower Main Street Associates v. New Jersey Housing & Mortg. Finance Agency, 114 N.J. 226, 235 (1989).

In Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313 (1984), the Court set forth a six-factor test for determining whether agency action constitutes rulemaking and must conform to the APA. “These factors are applicable whenever the authority of an agency to act without conforming to the requirements of the APA is questioned, for example, in adopting orders, guidelines, or directives.” Coalition for Quality Health Care, supra, 348 N.J. Super. at 295 (citing Doe v. Poritz, 142 N.J. 1, 97 (1995); Woodland Private Study Group, supra, 109 N.J. at 67-68; Bullet Hole, Inc. v. Dunbar, 335 N.J. Super. 562, 580 (App. Div. 2000)). All six factors need not be met in order for an agency action to be considered a rulemaking. Ibid. The six factors are whether the action:

(1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. [Metromedia, Inc. v. Director, Division of Taxation, supra, 97 N.J. at 331-332].

The action of DMAVA is akin to rulemaking, not adjudication or informal action. Plaintiffs argue persuasively that the Metromedia test is met and that a rulemaking would be required under the circumstances because the rule is to apply generally to the public and for all future demonstrations, the rule is not retroactive, there are no previous regulations regarding the use of Veterans Park, and DMAVA’s rules reflect a policy determination with regard to current and future uses of the park. DMAVA even refers to its regulations as “rules” and not informal action. See Lougy Certification, Exh. A and B. Moreover, DEP has adopted rules governing the uses of State Parks, see e.g. N.J.A.C. 7:2-6.1(a) (regulating camping), and the federal government has adopted rules governing the permissible scope of demonstrations at or near monuments and parks used traditionally for free speech activities. See e.g. 48 F.R. § 28058 (1983) and 36 C.F.R. § 50.27(a) (1983). DMAVA has thus attempted to regulate conduct by instituting guidelines similar to ones other agencies have adopted through formal rulemaking.

Although not always clearly defined, informal agency action is generally directed toward implementing or augmenting existing policies. Clear standards, proper procedural formalities, and consistency are important when dealing with freedom of speech and protection of property rights. When addressing government license and permit requirements in traditional public forums such as public parks, the United States Supreme Court has held that consistency in regulations pertaining to First Amendment demonstrations is paramount. Such laws or ordinances are unconstitutional if they do not have “narrow, objective, and definite standards to guide the licensing authority.” Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969). The United States Supreme Court has cautioned that “lodging . . . broad discretion in a public official allows him to determine which expressions of view will be permitted and which will not. This thus sanctions a device for the suppression of the communication of ideas and permits the official to act as a censor.” Cox v. Louisiana, 379 U.S. 536, 557 (1965). The Supreme Court has held that “unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of . . . freedom of speech and assembly secured . . . by the First Amendment, as applied to the States by the Fourteenth Amendment.” Id. at 557-558. In Shuttlesworth, the United States Supreme Court went as far as to say that when demonstrators are faced with an unconstitutional licensing scheme, they “may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.” Shuttlesworth, supra, 394 U.S. at 151. The United States Supreme Court’s concern about the exercise of “unfettered” discretion by public officials to restrict constitutionally protected speech is magnified where, as here, the authority of the official taking the action has been called into question.

Here, there has not been any proof provided that rules or regulations regarding the use of Veterans Park or the War Memorial existed prior to DMAVA’s letter. Moreover, as Plaintiffs certified, no regulations were applied to the NJ-CAN demonstration on August 8, 2011, which included the setting up of a table at the Park and signs spread around the Memorial. Although the NJ-CAN demonstration was limited to a single day, the inconsistencies between Defendants’ approach to the NJ-CAN demonstration and Plaintiffs’ demonstration raises significant questions as to whether any of the “rules” set forth in DMAVA’s letter existed prior to Plaintiffs’ demonstration. Based on the record now before the court, it appears that the “rules” were developed in response to the Occupy Trenton protest. Plaintiffs have thus demonstrated a likelihood of success on the merits that due process under the New Jersey Constitution requires that DMAVA promulgate regulations concerning demonstrations at Veterans Park through rulemaking and not informal agency action.

Defendants contend that DMAVA’s rules were a necessary response to the exigencies presented by the Occupy Trenton protest and the impact of the demonstration on the World War II Memorial. The APA has established a procedure for emergency rulemaking to be used when unanticipated circumstances arise:

If an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 30 days’ notice and states in writing its reasons for that finding, and the Governor concurs in writing that an imminent peril exists, it may proceed without prior notice or hearing, or upon any abbreviated notice and hearing that it finds practicable, to adopt the rule. The rule shall be effective for a period of not more than 60 days unless each house of the Legislature passes a resolution concurring in its extension for a period of not more than 60 additional days. The rule shall not be effective for more than 120 days unless repromulgated in accordance with normal rule-making procedures. [N.J.S.A. 52:14B-4(c)].

The need for prompt action thus does not excuse an agency “from adhering to the mandates of the Administrative Procedure Act.” Bd. of Educ. v. Cooperman, 209 N.J. Super. 174, 210 (App. Div. 1986). Where rulemaking is required, failure “to comply with the requirements set forth by our Legislature, with respect to the promulgation of agency rules, renders the [agency action] under review null and void and of no force and effect.” Ibid. (citing N.J.S.A. 52:14B-4(d)).

The procedural history of White House Vigil for ERA Committee v. Clark, 746 F.2d 1518 (D.C. Cir. 1984) (“ERA II”), is particularly instructive in determining what procedural due process is required when an agency acts in an interim or emergent fashion that constrains First Amendment freedoms. In ERA II, the D.C. Circuit addressed the constitutionality of new regulations implemented by the National Park Service. “The regulations required that signs and placards displayed on the White House sidewalk be hand-held by individuals[,] . . . . prohibited the deposit of parcels on the sidewalk for longer than one hour and provided that parcels placed on the sidewalk were subject to inspection by police officers.” ERA II, supra, 746 F.2d at 1521. In White House Vigil for ERA Committee v. Watt, 717 F.2d 568, 573 (D.C. Cir. 1983) (“ERA I”), the D.C. Circuit Court addressed the National Park Service’s rationale that the new regulations were required for national security and to combat terrorism. In ERA II, the D.C. Circuit addressed the merits of the regulations on the basis of presidential security, pedestrian safety and traffic, and aesthetics. ERA II,supra, 746 F.2d at 1528.

In the ERA cases, the National Park Service attempted to address increased security concerns and recent threats of terrorism by limiting the kinds of activities that would be acceptable for demonstrations on the sidewalk outside the White House. Id. at 1520. In particular, the National Park Service was motivated by “[t]he need for increased presidential security[,] tragically illustrated by the events of 8 December 1982, when Norman Mayer, a regular protestor on the White House sidewalk, was killed by police officers after threatening to blow up the Washington Monument . . . . [and] terrorist activity continu[ing] at an alarming rate both at home and abroad.”Ibid.
The National Park Service published interim regulations on April 22, 1983, which became effective immediately. Id. at 1521. The District Court held an evidentiary hearing on Plaintiffs’ motion for a temporary restraining order and held that “the Park Service had failed to show ‘good cause’ for dispensing with the notice and comment requirements of the Administrative Procedure Act when it issued the interim regulations.” Ibid. The Federal APA provides agencies an opportunity to act without notice and comment rulemaking “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C.S. § 553(b)(B).4 The District Court “enjoined enforcement of the regulations pending publication of a final rule,” despite the significant security concerns raised by the government. ERA II, supra, 746 F.2d at 1521.

Here, DMAVA’s regulations are similar to those in the ERA cases. DMAVA seeks to restrict the kinds of items that demonstrators may have and whether those items must be attended. DMAVA instituted its rules out of concern for public safety, public enjoyment, and the aesthetics of the World War II Memorial. Like the National Park Service in ERA I, DMAVA implemented rules without following notice and comment procedures for rulemaking. At issue in ERA I was not whether the National Park Service had the authority to issue an interim regulation, but whether it had sufficient good cause to do so. The District Court, in evaluating the demonstrators’ motion for temporary restraints, found that the National Park Service’s goal of enhancing national security did not provide sufficient good cause to satisfy an interim regulation, and granted temporary relief to the Plaintiffs. ERA II, supra, 746 F.2d at 1521. Although the D.C. Circuit reviewed the case at the later preliminary injunction stage and modified some of the restraints imposed by the District Court, the D.C. Circuit court was careful to ensure that proper procedure was followed and that First Amendment freedoms were curtailed as little as possible.

Here, as in the ERA cases, Defendants have not followed proper procedure. Although Defendants provided Plaintiffs with informal notice before removing their property, that notice is insufficient to comply with the requirements of the APA. Defendants maintain that this demonstration was different than others and that they acted on the basis of concern for public safety and public accessibility. While Defendants’ goals are laudable, their failure to comply with required procedures is not. The purpose of the emergency rulemaking procedure is to allow agencies to address unanticipated events that pose a concern to public health, safety, or welfare while complying with due process concerns. DMAVA had the opportunity to regulate Plaintiffs’ conduct through emergency rulemaking, but has not shown any evidence of even an attempt to do so. Plaintiffs thus have demonstrated a strong likelihood of success on their claim that DMAVA’s failure to comply with the procedure for emergency rulemaking violates their right to procedural due process under the New Jersey Constitution and APA.

  1. Overbreadth and Vagueness Challenge to DMAVA’s Regulations

Plaintiffs argue that Defendants’ letter, if enforceable, is fatally overbroad and vague and thus violates due process. “[A] law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits.” City of Chi. v. Morales, 527 U.S. 41, 56-57 (1999) (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966)). A civil or criminal law can be considered void for vagueness. Moreover, “[b]oth liberty and property are specifically protected by the Fourteenth Amendment against any state deprivation which does not meet the standards of due process, and this protection is not to be avoided by the simple label a State chooses to fasten upon its conduct or its statute.” Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966). Plaintiffs argue that the DMAVA letter does not properly define what constitutes an “unattended” item, “camping,” or “picnicking.”

  1. Prohibition on “Unattended Items”

Defendants claim they provided Plaintiffs with “six separate notices” regarding the unattended and prohibited items and that Plaintiffs were provided with sufficient time to address the property in question. Defendant’s Brief at 22. Defendants argue that removal of items that were unclaimed by any person did not violate due process. Id.at 24. Plaintiffs do not argue that Defendants failed to give them adequate notice. Plaintiffs do argue that Defendants have failed to provide a written definition of “unattended” and further that their definition deviated from accepted definitions of the term.

In ERA II, the D.C. Circuit considered and upheld National Park Service rules that prevented unattended signs and packages from demonstrations on the sidewalks adjacent to the White House grounds. By the time of the decision in ERA II, the restrictions had been adopted by administrative rulemaking. While the rules discussed whether “unattended” items should be restricted, and the extent to which they should be restricted, they did not define the term unattended within the rules. See 48 F.R.§ 17352 and 48 F.R. § 28058. Pertinent case law and analogous federal rules thus suggest that Defendants may use the word “unattended” so long as Plaintiffs have notice of what conduct is affected. Here, although Plaintiffs and Defendants seem to have differed regarding whether the items met the legal standards of unattended or abandoned, Defendants did give Plaintiffs notice of how they defined unattended. Plaintiffs have thus not shown a likelihood of success on the merits of this challenge, although the scope of the term is something that can and should be addressed in the rulemaking process.

  1. Prohibition on “Picnicking”

Plaintiffs argue that the World War II Memorial is designed for groups of people congregating and picnicking. Further, Plaintiffs argue that no definition of “picnicking” has been provided by Defendants. Plaintiffs argue that the lack of definition will lead to inconsistent enforcement. Plaintiffs note that the Department of Environmental Protection does not define picnicking in its regulations governing state parks, which place restrictions on “group picnicking.” N.J.A.C. 7:2-9.7. Plaintiffs claim that these group picnicking restrictions only apply to groups of 20 or more, but the regulation cited does not indicate any particular group size. Defendants use of the word “picnicking” is not so standardless as to be found constitutionally deficient. Plaintiffs have thus not shown a likelihood of success on the merits of this claim. Again, however, Plaintiffs should be offered the opportunity to raise their concerns in a proper rulemaking process, and Defendants should consider including a clarification of the proscribed conduct in that process.

  1. Prohibition on “Camping”

Plaintiffs admit that it would permissible for Defendants to regulate camping, “if passed pursuant to a proper process.” However, Plaintiffs claim that Defendants have not employed a proper process and further that they have restricted more conduct than a permissible regulation of camping. Plaintiffs cite Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (“CCNV II”), a case in which the Supreme Court held that it was permissible for the National Park Service to enforce camping restrictions to keep protesters from sleeping in a tent city they had created to bring awareness to homelessness. In CCNV II, camping was defined as:

the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or . . . other structure . . . for sleeping or doing any digging or earth breaking or carrying on cooking activities. [Id. at 290-291 (citing 36 C.F.R. § 50.27(a) (1983))].

Here, the Occupy Trenton participants claim that they are not camping. They claim that items that contribute to maintaining a continuous presence, such as “computers, media equipment, coolers, small personal computer tables, collapsible chairs, and rain gear” differ from “living accommodations.” It is clear under CCNV II, however, that camping as part of a demonstration can be restricted as a reasonable time, place, and manner limitation on conduct claimed to be expressive. Plaintiffs thus are not likely to succeed on a challenge to the substance of DMAVA’s restriction on camping at the World War II Memorial.

  1. Defendants’ Proprietary Right to Regulate

Defendants argue that the State was acting in its proprietary capacity when it established guidelines for the World War II Memorial and therefore did not have to comply with the rulemaking requirements of the APA. Defendants rely on two cases, Adderly v. Florida, 385 U.S. 39 (1966), and Safari Club Intern. v. New Jersey Dept. of Environmental Protection, 373 N.J. Super. 515 (App. Div. 2004), to support their argument that the State may regulate its own property in the same manner as a private landowner without formally adopting rules. Defendants argue that these cases establish their right to regulate free speech activities in Veterans Park because “[t]he contrary conclusion would leave state property subject to unforeseen abuses simply because they were unforeseen.” Defendants’ Brief at 21. Both cases are distinguishable from the matter currently before the court, although the court acknowledges that the State owns Veterans Park5 and may exercise law enforcement and certain other proprietary actions there without rulemaking.

Adderly addressed a First Amendment challenge to a criminal conviction for trespass upon the premises of the county jail. Adderly, supra, 385 U.S. at 40. The Supreme Court distinguished this case from prior cases regarding demonstrations on public property because “[t]raditionally, state capitol grounds are open to the public. Jails, built for security purposes, are not.” Id. at 41. The Supreme Court explained that there was no evidence that other large groups had previously been permitted to gather “on this portion of the jail grounds for any purpose.” Id. at 47. Further, the Supreme Court noted that “[n]othing in the Constitution of the United States prevents Florida from even-handed enforcement of its general trespass statute against those refusing to obey the sheriff’s order to remove themselves from what amounted to the curtilage of the jailhouse.” Ibid.

In Adderly, the petitioners argued that they had the right to stay on the jail property because their protest was peaceful, reasonable, and appropriate considering that the subject of their protest was the previous arrest of other students who were housed in the jail. Id. at 47. The Supreme Court rejected this argument and held that:

The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. . . . The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose. [Id. at 48].

Notably, the state property at issue in Adderly was a jail that had never been used for any sort of demonstration, while Veterans Park has a long history of use for public gatherings and demonstrations given its close proximity to the State House. Moreover, Veterans Park is a park open to the public, and no claim of trespassing has been raised by the State. As discussed previously, public parks are considered traditional public forums where the exercise of free speech activities is afforded a high level of constitutional protection.

Second, in Adderly, the restriction on trespassing existed prior to the action before the court, whereas the rules set forth in DMAVA’s letter appear to have been created in response to the actions of Plaintiffs. In fact, the Supreme Court noted, in Adderly, that “[t]here is no lack of notice in this law, nothing to entrap or fool the unwary.” Id. at 42.

Safari Club did not address free speech or property deprivation issues at all. Rather, it reviewed the question of whether the Commissioner of the Department of Environmental Protection could issue directives limiting bear hunting on state lands. Safari Club Intern. v. New Jersey Dept. of Environmental Protection, 373 N.J. Super.515, 517 (App. Div. 2004). The Plaintiffs argued that the Commissioner lacked authority for his actions or, in the alternative, that his actions – if authorized – were arbitrary and capricious. Ibid. In upholding the Commissioner’s power to determine what ‘uses’ will be allowed in state parks, forests and recreation areas,” Id. at 520 (citing N.J.S.A. 13:1B-5(a)), the court found that “the Commissioner was exercising the same authority as any other private or public landowner to control the use of its land, including whether to allow hunting.” Id. at 521.

The court does acknowledge that the State has some proprietary rights over Veterans Park, particularly with respect to the health and safety of the public. The State may utilize the State Police for these purposes. The State Police is entrusted with the same broad authority as “conferred by law upon police officers and constables.”N.J.S.A. 53:2-1. The State Police has “the authority to perform all of the duties of members of the State Capitol Police Force as defined in section 2 of P.L. 1977, c. 135 (C. 52:17B-9.2).” Ibid. The responsibilities of the State Capitol Police Force include:

(1) Maintenance of law, order and decorum on all State grounds as enumerated above;
(2) The protection and policing of all areas used by the members of the Legislature, Executive and Judiciary, and the rendering and performing of services necessary to the proper, convenient and efficient performance of said members’ duties at, around, and between State grounds as set forth herein, and the offices used by members of the Legislature, Executive and Judiciary. [N.J.S.A. 52:17B-9.2(b)].

While the State may and does exercise proprietary control over Veterans Park, when the scope of that control implicates important constitutional rights, careful scrutiny of restrictions imposed in a “proprietary capacity” is warranted.

DMAVA has not cited any statutory or regulatory authority to regulate Veterans Park. Moreover, Safari Club did not involve the exercise of constitutional rights entitled to careful scrutiny. Nor were the state lands at issue there the kind of public park traditionally used for free speech activities. Careful scrutiny here has convinced the court that Plaintiffs are likely to prevail in their argument that rulemaking is necessary for many of the restrictions imposed in DMAVA’s letter. Defendants’ reliance on these cases does not alter the court’s view that Plaintiffs have demonstrated a likelihood of success on the merits of their procedural challenge to DMAVA’s “rules” despite the State’s ability to assert some regulatory control over activities in the Park.

  1. Substance of Defendants’ Rules: Freedom of Speech Issues

“Where speech on public issues is involved, courts insist that government ‘allow the widest room for discussion, the narrowest range for its restriction.’” State v. DeAngelo, 197 N.J. 478, 485 (2009) (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)). As a result, any restriction on public issue picketing must be subject to careful scrutiny. Ibid. (citing United States v. Grace, 461 U.S. 171, 176 (1983); Carey v. Brown, 447 U.S. 455, 459-463 (1980)). Consistent with those principles, the New Jersey Supreme Court has declared that “‘the scrutiny to be accorded legislation that trenches upon first amendment liberties must be especially scrupulous.’” Ibid. (quotingState v. Cameron, 100 N.J. 586, 592 (1985)).

When “determining the limits, if any, that may be placed on protected speech on public property, different standards may apply ‘depending on the character of the property at issue.’” DeAngelo, supra, 197 N.J. at 485-86 (quoting Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 44 (1983)). “First Amendment jurisprudence recognizes three types of forums: ‘the traditional public forum, the public forum created by government designation, and the [non-public] forum.’” Ibid.(quoting Frisby v. Schultz, 487 U.S. 474, 479-80 (1988)). “Public streets, parks, and sidewalks are traditionally public forums that occupy a ‘special position in terms of First Amendment protection, . . . [in that] the government’s ability to restrict expressive activity is very limited.’” Ibid. (quoting Boos v. Barry, 485 U.S. 312, 318 (1988)). “[S]treets and parks . . . ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” Perry Educ. Ass’n, supra, 460 U.S. 37, 45 (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). In a traditional public forum:

the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. [Ibid. (internal citations omitted)].

Here, Veterans Park is a traditional public forum and as such is accorded the highest level of protection for speech on public issues. However, the government may enact content neutral, reasonable time, place and manner restrictions.

  1. Expressive Nature of Plaintiffs’ Conduct

Here, Plaintiffs argue that the regulations are content-based and infringe on their freedom of expression. Defendants argue that the restrictions are content-neutral time, place, and manner regulations that do not limit core protected speech. Defendants argue that the restrictions within the DMAVA letter reach only non-expressive conduct and that “[g]enerators, tables, and coolers are not conduct at all, much less expressive conduct.” Defendants’ Brief at 26.

Although the court need not reach the question of whether Plaintiffs’ conduct is expressive for it to find that Defendants’ rules were content-neutral reasonable time, place, and manner restrictions, see CCNV II, supra, 468 U.S. at 293, the issue of whether Defendants’ rules circumscribe expressive conduct is important as it bears on whether Plaintiffs can establish irreparable harm.

Plaintiffs bear the burden of demonstrating that the conduct at issue is expressive. Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 160-161 (3d Cir. 2002). To be expressive, conduct must be:

intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative. Spence v. Washington, 418 U.S. 405 (1974);Tinker v. Des Moines School District, 393 U.S. 503 (1969). Symbolic expression of this kind may be forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech. United States v. O’Brien, 391 U.S. 367, 376 (1968). [CCNV II , supra, 468 U.S. at 294].

In CCNV I, the demonstrators sought and obtained a permit to establish a tent city as part of their demonstration. CCNV I, supra, 670 F.2d at 1215. The demonstration was described as consisting of “one small symbolic tombstone, a number of small symbolic crosses and two 4′ X 4′ signs. . . . nine symbolic tents [named] ‘Reaganville’ and . . . 47 crosses commemorating the homeless persons ‘who have frozen to death in recent winters in the District of Columbia.’” Id. at 1215 n.10.

Defendants cite White House Vigil for ERA Committee v. Clark, 746 F.2d 1518 (D.C. Cir. 1984) (“ERA II”), in support of their argument that parcels do not constitute expressive activity. In ERA II, the D.C. Circuit addressed “the constitutional validity of regulations promulgated by the National Park Service to restrict demonstrations and other activities on the sidewalk directly in front of the White House.” Id. at 1519-20. In ERA II, the D.C. Circuit held that appellees did not establish that placing parcels on the sidewalk constituted expressive conduct because they did not make any “credible claim that [placing parcels on the sidewalk] is ‘inten[ded] to convey a particularized message’; nor have they shown that onlookers would regard their conduct as communicative.” Id. at 1540. Although the D.C. Circuit held that placing parcels on the sidewalk did not constitute expressive activity in that case, they were clear that such conduct is not “inherently non-expressive. In other circumstances the placing of items on the ground may be considered expression; we hold only that the demonstrators here have failed to establish the expressive content of their activity.” Id. at 1540 n.141.

In determining whether conduct is expressive, the court evaluates whether the conduct was intended to be communicative and whether a viewer would reasonably understand it to be communicative. Plaintiffs argue that their goal is to create an occupation and that this goal is accomplished by establishing a physical presence in Veterans Park. Plaintiffs claim that the items restricted by Defendants inhibit their ability to communicate their message. Plaintiffs seem to have intended their conduct to be communicative, so the issue is whether the items they brought to Veterans Park would be understood by a viewer to be communicative. Plaintiffs’ items are somewhat akin to the tent cities created by CCNV, described in CCNV I and CCNV II. Notably, however, based upon the current record before the court, including photographs provided by Defendants, it appears that Plaintiffs’ demonstration is far less cohesive than those created by CCNV. Plaintiffs have not shown that they created a specific installation coordinated with their message. Instead, Plaintiffs have brought to the Park a haphazard array of items that seem primarily to be used for Plaintiffs’ comfort, not to express their message. Plaintiffs’ items included large Tupperware boxes, a couch, an inflatable inner tube, several tarps, collapsible chairs, and tables. These items are not of the sort that could be reasonably understood by a viewer to convey Plaintiffs’ message. Consequently, Plaintiffs have not shown a likelihood of success on their argument that these items constitute expressive conduct.

Plaintiffs also argue that an important component of their demonstration is the ability to “live-stream” their activities on the Internet. Plaintiffs claim that the use of electrical outlets or a generator is essential to allow them to convey their message. Regardless of the importance Plaintiffs ascribe to their Internet activities, access to electricity is not expressive conduct. Rather, denying access to electrical outlets in the Park is a permissible proprietary action by Defendants, especially since the State is responsible for paying the electric bills. Plaintiffs are not likely to succeed on their argument that limiting their access to electrical outlets or the use of a generator infringes on their expressive conduct. Plaintiffs remain free to use batteries to operate their computers and media equipment at the site, or to find another place from which to broadcast their message.

  1. Whether the Regulations Are Content-Based or Content-Neutral

Defendants argue that the guidelines set forth in the DMAVA letter are content-neutral regulations that constitute reasonable time, place, and manner restrictions on Plaintiffs. Defendants argue that their regulations were both reasonable and necessary because of concerns regarding safety and the public’s ability to enjoy Veterans Park and the World War II Memorial. Plaintiffs argue that these regulations do not serve a “substantial” government interest and that the restriction is not “narrowly tailored,” making them unconstitutional. Plaintiffs’ Brief at 22. Because these regulations were apparently created in reaction to Plaintiffs’ demonstration, it is necessary to evaluate whether the rules were content based, created to infringe on Plaintiffs’ expressive conduct, or content neutral and aimed solely at protecting Veterans Park. To that end, it is necessary to evaluate whether any of the conduct regulated by Defendants is expressive in nature.

The Supreme Court has held that:

Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. . . . restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. [CCNV II, supra, 468 U.S. at 293].

In CCNV II, the Supreme Court held that enforcing an existing ordinance prohibiting camping in public parks did not infringe on the public’s rights to free speech and expression. In CCNV II, the demonstration was intended to bring awareness to homelessness through the construction of a tent city. Id. at 289. In CCNV II, Community for Creative Non-Violence (“CCNV”) sought and obtained a permit to establish a tent city in Lafayette Park, located across the street from the White House. Ibid. While the National Park Service allowed the construction of the tent city, it did not allow any of the demonstrators to sleep in the tents because that would violate the regulation preventing camping. Id. at 292. CCNV argued that being able to sleep in their tent city was expressive conduct central to their goal of bringing awareness to homelessness. Ibid. The Supreme Court held that the regulation prohibiting camping was content neutral. Id. at 295. As such, it applied intermediate scrutiny to determine if it was a reasonable time, place, and manner restriction. The Court held that the National Park Service’s “regulation narrowly focuse[d] on the Government’s substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence.” Id. at 296.

Here, Defendants assert that their regulations are motivated by the need to preserve the integrity, aesthetic value, accessibility, and safety of state owned property that was built and dedicated as a memorial to New Jersey residents who served this country in World War II, most especially the approximately 12,000 who lost their lives in the conflict. Such a purpose constitutes a substantial government interest, akin to that at issue in CCNV II. DMAVA’s rules appear to be sufficiently narrowly tailored. Defendants’ regulations are aimed at preserving the safety of the park, particularly the restriction on the use of electricity and Plaintiffs’ generator. Defendants need not pick the least restrictive alternative in accomplishing their goals. Defendants need only demonstrate that their actions are narrowly tailored to meet their goal. Plaintiffs therefore are unlikely to show on the present record that DMAVA’s rules are not content-neutral, reasonable time, place, and manner restrictions on the use of Veterans Park and the World War II Memorial.

  1. Substance of Defendants’ Rules: Unattended Property

Plaintiffs argue that for an item to be seized under the “rules,” it must be deemed abandoned. Defendants claim that gathering “unattended” items does not violate Article I, Paragraph 7 of the New Jersey Constitution and does not constitute an unlawful search and seizure of Plaintiffs’ property.

Plaintiffs claim that, under Poulathas v. Atlantic City Zoning Bd. Of Adjustment, 282 N.J. Super. 310, 313 (App. Div. 1995), there must be a factual showing of intent to abandon for an item to be deemed abandoned. Plaintiffs also cite several definitions of “unattended” from regulations adopted by the Department of Environmental Protection: “‘Unattended’ means user not available for questioning by officer at the time of inspection” N.J.A.C. 7:25-6.2; “‘unattended’ means that set of circumstances where the operator is more than 1/2 nautical mile (3,040 feet) from the nearest portion of his net” N.J.A.C. 7:25-18.5(b)(6); “‘When unattended’ means a situation wherein the person or a knowledgeable employee of the person possessing a restricted use pesticide or container contaminated by residues of restricted use pesticide(s) either is not present at the storage site or is present but is so located that he cannot immediately detect and respond if any unauthorized second party enters the storage site”N.J.A.C. 7:30-1.2. While none of these definitions pertain directly to Plaintiffs’ conduct, they do provide examples of rules that specify the kinds of circumstances under which an item will be deemed unattended for particular conduct.

Defendants cite State v. Carvajal, 202 N.J. 214 (2010), in support of their position that the property confiscated from Veterans Park was abandoned. In Carvajal the New Jersey Supreme Court upheld the constitutionality of a warantless seizure and search of an “abandoned” duffel bag where the defendant had “knowingly and voluntarily disclaimed any ownership or possessory interest in the bag in response to police questioning and every other passenger on the bus denied owning the bag.” Id. at 218. In evaluating the constitutionality of the search and seizure, the New Jersey Supreme Court addressed the meaning of abandonment and held that for the purposes of standing to challenge a warrantless search:

‘property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property.’ We determined that this definition of abandonment ‘provides the strongest guarantee that the police will not unconstitutionally search or seize property, which has multiple apparent owners, merely because one person has disclaimed a possessory or ownership interest in that property.’ [Id. at 223 (internal citations omitted)].

The Court stated that:

[t]he clearest example [of abandoned property] would be an unattended bag on a subway platform or in a public park. In those instances, no one will have formally relinquished ownership or an interest in the property. If a bag is considered abandoned after ten people tell the police the property is not theirs, it would seem just as logical that the same bag is abandoned if, in a public place, there is no one present to claim it. [Id. at 225-226].

The Court’s example is clearly directed at property which is left completely unattended in a park. The Court’s definition of unattended specifically takes into account the possibility that property may have “multiple apparent owners.”

Plaintiffs argue that DMAVA’s letter does not properly define what constitutes an “unattended” item. Defendants argue that their removal of unattended or prohibited items from Veterans Park does not constitute a violation of due process because Plaintiffs were provided with notice on six separate occasions that all items must be attended and also that certain items are prohibited. Plaintiffs do not argue that Defendants failed to give them adequate notice. Instead, Plaintiffs argue that Defendants’ failure to provide a written definition of “unattended” is a due process violation and further that their definition deviated from accepted definitions.

Here, there is evidence that Plaintiffs’ items were spread out across the Park. Plaintiffs state that they have maintained a round-the-clock presence at Veterans Park since October 6, 2011. While the State Police gave Plaintiffs several admonishments that unclaimed items would be deemed unattended and removed, it is unclear whether some or all of the items that were taken by the State Police met the definition of unattended. Further, Plaintiffs assert that they claimed the items belonged to them before the items were deemed abandoned and confiscated.

The definition of “unattended” set forth by the New Jersey Supreme Court does not require items to be within a particular distance of one’s person in order to be “attended.” Plaintiffs and Defendants have cited several different definitions of “unattended” arising out of such varied contexts as zoning law, rules of the State Park Service, and criminal procedure. While it is clear that Defendants could, in accord with proper procedure, promulgate reasonable time, place, and manner rules regarding “unattended” items, this wide variety in definitions indicates that defining the word “unattended” is an area appropriate for rulemaking. Based on the case law cited and the evidence before this court, Plaintiffs have shown a likelihood of success on the merits of their claim that due process was violated by Defendants’ seizure of their property without first having followed proper rulemaking procedures.

  1. Balancing of the Equities

The final criterion of the Crowe test for preliminary injunctive relief requires a balancing of the relative hardships to the parties in granting or denying relief. Crowe,supra, 90 N.J. at 134 (citing Isolantite Inc. v. United Elec. Radio & Mach. Workers of America, 130 N.J. Eq. 506, 515 (Ch. 1941), modified on other grounds, 132 N.J. Eq.613 (E. & A. 1942)). The party moving for a temporary restraint or preliminary injunction must demonstrate that “the public interest will not be harmed.” See, e.g., Waste Mgmt. of N.J., supra, 399 N.J. Super. at 520. In some cases, such as when the public interest is greatly affected, a court may withhold relief despite a substantial showing of irreparable injury to the applicant. Ibid.

Plaintiffs argue that the effect on their ability to demonstrate as they choose is a hardship because their property has been confiscated and their ability to communicate their message has been hindered by Defendants’ restrictions. Further, Plaintiffs argue that these restrictions will hamper their efforts to attract additional participants. Plaintiffs claim that Defendants will suffer no hardship because invalidating Defendants’ regulations will merely return Veterans Park to the status quo that existed prior to DMAVA’s issuance of the October 13, 2011 letter. Plaintiffs argue that it is in the public interest to grant injunctive relief because administrative officials must not be permitted to declare law by edict. Defendants argue that the restrictions on Plaintiffs are in the public interest as they ensure the safety and accessibility of the Park and World War II Memorial. Further, they argue that Plaintiffs’ demonstration “diminishes the ability of the general public to use the facility and reflect upon the losses and sacrifices it memorializes.” Defendant’s Brief at 40.

Plaintiffs have also made claims regarding the abridgment of their rights of assembly and free press, particularly with respect to Plaintiff Higgins, but these claims have not been the focus of their motion for temporary restraints. The court finds that the regulations do not affect Plaintiffs’ right to assemble because they have not been prevented from demonstrating in Veterans Park. Plaintiff Higgins’ claim of abridgment of the freedom of the press is related to Plaintiffs’ claim to use the electrical outlets in Veterans Park, which the court addressed above, and his claim that his computer was confiscated without due process, also addressed above.

Balancing the equities in this case is difficult because of the sensitive issues involved. The court recognizes the importance of the World War II Memorial to the citizens of New Jersey, as well as the importance of freedom of speech and expression and the right not to be deprived of property without due process. The court has endeavored to balance these competing concerns. Ultimately, the court finds that the equities tip slightly in Plaintiffs’ favor because they are entitled to have restrictions on their constitutionally protected activities imposed by rulemaking and not informal action targeted at their demonstration. The court is concerned, however, that the granting of a partial temporary restraint not be viewed as restricting law enforcement activities at the site that are essential to the public health and safety of all citizens, including the demonstrators. The court will thus craft any temporary restraints issued to take into account the permissible scope of the State’s proprietary rights.

  1. Plaintiffs’ Are Entitled To Limited Temporary Relief

Plaintiffs have questioned DMAVA’s authority to regulate conduct at Veterans Park and contend that the “rules” in the October 13, 2011 letter did not comply with proper procedure and must be temporarily restrained pending further hearing. However, Defendants have made persuasive arguments that their rules are substantively reasonable and that the restricted conduct is not expressive in nature. Further, although Plaintiffs have established that any violation of important constitutional guarantees constitutes irreparable harm, Plaintiffs have not established that the DMAVA rules go beyond reasonable time, place, and manner restrictions. In the ERAcases, when faced with an even larger threat to public safety and national security, the D.C. District and Circuit courts compelled the National Park Service to comply with proper administrative procedure. See White House Vigil for ERA Committee v. Watt, 717 F.2d 568, (D.C. Cir. 1983) and White House Vigil for ERA Committee v. Clark, 746 F.2d 1518 (D.C. Cir. 1984). The court has concluded that a similar approach is warranted here.

Ultimately, this court has been guided in its ruling regarding temporary restraints by New Jersey case law regarding the requirements and importance of rulemaking and the ERA precedents that support application of these State precedents in the context of the present challenge. This decisional law is clear that when rulemaking is required by an agency and the agency fails to follow appropriate procedures, the rule is invalid. See Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313, 338 (1984); Bd. of Educ. v. Cooperman, 209 N.J. Super. 174, 202 (App. Div. 1986). As strong as Defendants’ substantive arguments may be, on this record they cannot overcome Plaintiffs’ likelihood of success in establishing the procedural infirmity of DMAVA’s actions. Nor can Defendants overcome Plaintiffs’ showing of irreparable harm based upon the confiscation of their property without prior rulemaking. Temporary relief is thus warranted in Plaintiffs’ favor. The scope of that relief, however, is affected by the court’s analysis of Plaintiffs’ and Defendants’ competing rights and responsibilities.

After balancing the equities and carefully scrutinizing DMAVA’s “rules”, the court will grant Plaintiffs’ application in part and enjoin those aspects of the rules that go beyond the State’s purely proprietary authority and affect speech and property rights. The temporary restraining order crafted by the court will allow the State, through the State Police, to protect the safety of its property and the public. Regardless of the procedural issues, Plaintiffs have not established their right to use electricity paid for by the State. In its proprietary capacity, the State Police may prevent any members of the public, including Plaintiffs, from accessing the electrical outlets in Veterans Park. Further, the gas generator raises safety concerns that do not implicate constitutional rights. The State Police may thus exercise its authority to ensure public safety and restrict the use of Plaintiffs’ gas generator. Likewise, although there is no evidence that Plaintiffs have affixed any items to the World War II Memorial, this is another area where the State may regulate in its proprietary capacity pending rulemaking. Because of the potential for damage to the World War II Memorial, the temporary restraining order will not extend to prevent regulation of any items attached, affixed, or covering any portion of the World War II Memorial. Plaintiffs are also not entitled to erect any sort of structures on the World War II Memorial because of the potential for property damage.

Plaintiffs have shown a likelihood of success on their claim that rulemaking is necessary prior to confiscation of nonhazardous property such as coolers, tables, and chairs. They have also shown that proper procedure must be followed before expressive signs and computers used to communicate the demonstrators’ message are removed from the Park as “unattended” while demonstrators are present. Plaintiffs’ property was taken without prior administrative rulemaking – a requirement based on constitutional due process under Article 1, Paragraph 1 of the New Jersey Constitution. Deprivation of property without due process constitutes irreparable harm and justifies the granting of temporary relief until a further record can be created. Because Plaintiffs’ property was taken without first complying with the necessary procedural safeguards, they are entitled to have it returned to them pending further court review. Consequently, Defendants must arrange to return Plaintiffs’ property to Veterans Park. To allow time for the return of the property, and to provide 24 hours notice to Plaintiffs so that they may be present to claim the property, the court is issuing an order giving Defendants until 2:00 p.m. on November 14, 2011, to return the items. Any property not claimed when it is returned to the Park shall be stored in the same Department of Treasury warehouse where it has been since its removal from the Park. The parties shall address the disposition of unclaimed property in the supplemental papers that the court is allowing them to file in preparation for its review of Plaintiffs’ application for a preliminary injunction. The court is issuing an order consistent with this decision.


Plaintiffs’ request for temporary relief is granted, subject to the limits set forth in this decision and accompanying order.

1 This statement of facts is based upon Plaintiffs’ Verified Complaint and the Certifications of Robert Lougy, Assistant Attorney General, Raymond L. Zawacki, Deputy Commissioner for Veterans Affairs, and Captain Neil Brosnan, New Jersey State Police, provided by Defendants.

2 The court imposed tight time frames for filings due to the nature of the claims brought by Plaintiffs. The court commends the parties for the high quality of the written submissions and oral argument presented given the limited amount of time available to counsel.

3 The New Jersey Supreme Court interprets the New Jersey free speech clause to be no more restrictive than the First Amendment. The Court has thus held that it is appropriate to rely on federal interpretations of the First Amendment in interpreting the free speech clause of the New Jersey State Constitution in all contexts except for political speech at privately owned and operated shopping malls and defamation. Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 264-265 (1998). Since neither of these exceptions apply here, this court has relied on federal as well as State precedents in analyzing the issues presented.

4 The New Jersey APA does not have a provision for the issuance of interim regulations based on a “good cause” standard. Instead, it has a provision allowing for emergency rulemaking. See N.J.S.A. 52:14B-4(c).

5 Even though Plaintiffs have seriously questioned DMAVA’s authority over the Park, there is no question that the Park is owned by the State.



It’s happening: Democratic lawmakers say Fast and Furious proof of need for harsher gun laws

From HotAir



Right on cue, Democratic lawmakers have begun to say the DOJ’s lethal and irresponsible Fast and Furious program underscores the need for stricter gun control laws:

“This hunt for blame doesn’t really speak about the problem,” said Sen. Dianne Feinstein at a recent Senate Judiciary hearing while discussing Fast and Furious.

“And the problem is, anybody can walk in and buy anything, .50-caliber weapons, sniper weapons, buy them in large amounts, and send them down to Mexico. So, the question really becomes, what do we do about this?”

The ranking Democrat on the House Oversight and Government Reform Committee, Rep. Elijah Cummings (Md.), and Rep. Carolyn Maloney (D-N.Y.) have introduced a dedicated firearms trafficking statute, but it has stalled in the House Judiciary Committee.

Republicans rightly have pushed back against this narrative. Rep. Trey Gowdy (R-S.C.) put it best when he said simply, “I get it, I’d want to change the subject too if I were them. I’m happy to have a conversation about broader gun laws, but we’re going to do it after Fast and Furious.”

What’s most troubling about Democrats’ predictable call for tightening of regulations is that it does nothing to dispel the theory that Fast and Furious was orchestrated precisely to “prove” the need to clamp down on gun sellers and purchasers. Rather, it lends credence to the idea.

Rep. Joe Walsh (R-Ill.) recently explained:

This not only raises serious questions about your ability to serve as the head of the Justice Department, but also begs the question of why an anti-gun Administration would knowingly force licensed firearms dealers to sell guns to violent criminals. I raise this because Operation Fast and Furious — if the facts of this case had not come to light — would have been used by this Administration as another false argument to attack law-abiding American gun owners.

The American people deserve to know if your Department had any intent to link the legal purchase of firearms here in the U.S. to crimes committed near our southern border. Operation Fast and Furious funneled firearms legally purchased at gun shops in the U.S. to known criminal syndicates to prove these syndicates have access to legal purchased weapons. This is a deliberate attempt to vilify and attack the millions of gun owners in America who value our Second Amendment and have never broken the law.

Walsh made the assumption that the administration would not be able to use OF&F as a support for greater gun control because “the facts of this case [have] come to light.” But, unfortunately, the facts have reached only those who’ve consciously followed the case. Fast and Furious has still largely been ignored by the mainstream media — and, when news outlets like CNN do cover it, it’s frequently with an administration-friendly spin.

Reminder: This operation resulted in the deaths of at least 200 Mexicans and at least 11 violent crimes in the U.S. The program intentionally funneled firearms into the hands of straw purchasers, and the operation’s architects made no apparent attempt to track the weapons. Officials still can’t account for more than 1,000 weapons. We don’t need new gun control laws: We need responsible Justice officials who would never allow ideology and political purposes to tempt them to implement a dangerous and disastrous program.



Spoiling for Another Fight?

Posted by poorrichard at Poor Richard’s Blog


American foreign policy is defined by rage to ravage. Lunatics run the asylum. Washington’s criminal class is bipartisan.
People have no say. Wealth and power alone matter. It’s always been that way, today more than ever. Post-WW II, America lurched from one war to another.

Today they’re waged in multiples. A queue perhaps includes Syria and Iran topping the list. Ongoing for months, Western intervention incited Syrian violence.

At issue is regime change, eliminating an Israeli rival, and advancing America’s imperium. Libya’s insurgency began the same way before NATO attacked last March. Will Syria follow the same pattern, then Iran?
So far, heated rhetoric alone is heard. On and off before it echoed. Media scoundrels regurgitate it. Is something different this time? Time alone will tell. Israel often makes baseless accusations. President Shimon Peres warned there’s “not much time left” to act.

Israel, of course, is the sole regional threat, nuclear armed and dangerous. A serial aggressor, it endangers Palestine, Syria, Lebanon, and Iran with potential attacks.

In contrast, Syria and Iran threaten no one. Rhetoric, of course, belies it. Warrior leaders like France’s Sarkozy whetted his killing appetite in Ivory Coast and Libya.

Despite overwhelming homeland opposition ahead of next year’s presidential election, he accused Iran of an “obsessional desire to acquire nuclear (weapons) in violation of all international rules….If Israel’s existence were threatened, France would not stand idly by.”

No evidence whatever suggests Iran’s developing nuclear weapons. Plenty shows Israel and France are nuclear armed and dangerous. So are axis of evil partners America and Britain. Whether or not attacking Iran is planned isn’t known.

The Islamic Republic’s taking no chances. On November 5, Press TV reported on “Iranophobia in what observers see as a political red herring to engage in a catastrophic war in the Middle East.”
Washington, Israel, Britain and France are up to their old tricks, inventing new threats to intervene. Iranian Foreign Minister Ali Akbar Salehi expressed concern, saying:

“The US has unfortunately lost wisdom and prudence in dealing with international issues. It depends only on power. They have lost rationality; we are prepared for the worst but we hope they will think twice before they put themselves on a collision course with Iran.”

“1. As Israel is the USA’s backyard, Iran will disturb peace there. (The absence of peace in Israel will certainly deny repose to the USA as well).
2. It would take full control of the Strait of Hormuz, the waterway where over 40 percent of all traded oil passes (thereby spiraling up oil prices to a confounding level and dealing a heavy blow to the already deteriorating global economy).
3. It would keep a close watch on all American military bases in Afghanistan and Iraq. In case of an attack, Iran will cripple the troops stationed in those bases and incapacitate them of any possible move.”
Iran can’t cripple America or Israel. However, its formidable military can inflict considerable damage if attacked.

Iran threatens no one. However, it’ll respond forcefully in self-defense. International law permits it. All nations may legitimately retaliate if attacked. It’s their right.

AIPAC’s War Agenda
AIPAC’s itching for a fight. Its web site drips with anti-Iranian diatribes. Spurious material includes memos citing:

  • Iran’s grave overall threat;

  • its nuclear threat;

  • its “leading state sponsor of terrorism” role;

  • its “provocations demand(ing a) tough response;” and

  • stopping its “nuclear smuggling.”

Two congressional bills were also discussed:

  • HR 1905: Iran Threat Reduction Act of 2011 “(t)o strengthen Iran sanctions law for the purpose of compelling Iran to abandon its pursuit of nuclear weapons and other threatening activities, and for other purposes.”

Introduced on May 13, it was reported to the House Foreign Affairs Committee. So far, no further action was taken.

  • S. 1048: Iran, North Korea, and Syria Sanctions Consolidate Act of 2011 “to expand sanctions with respect to the Islamic Republic of Iran, North Korea, and Syria, and for other purposes.”

Introduced on May 23, it was referred to the Committee on Banking, Housing, and Urban Affairs on October 13. So far, no further action was taken.

Sanctions alone don’t start wars. However, these bills edge closer. Provisions prohibit official and unofficial contact unless doing so harms US interests. Of course, laws don’t deter actions, and these haven’t yet passed.

America’s 1917 Trading with the Enemy Act (TWEA) is still law. One of its provisions states that in times of war or national emergency, presidents may:

“investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.”

Among others, IBM, General Motors, Ford, DuPont, Standard Oil, Alcoa, Kodak, Coca-Cola, and Chase Bank (now JPMorgan Chase) traded with Nazi Germany during WW II – a real enemy, not a fabricated one like Iran.

Nonetheless, AIPAC’s web site headlines, “Back Tougher Iran Sanctions.” Three spurious “key points” were listed:

  • Iran’s alleged low-enriched uranium stockpile to produce three nuclear bombs, and advanced centrifuge testing “to triple its production of higher enriched uranium;”

  • sanctioning Iranian ports, airline, and energy sector applies extreme pressure and economic disruption; and

  • despite unprecedented sanctions in place, Iran’s nuclear program continues.

Sanctions include travel restrictions, bans on selling electronic devices and related products, prohibiting or restricting trade with Iranian companies, embargoing its medical sector, and obstructing financial transactions. Some imposed hardships, others less so.

Energy starved nations value Iran’s oil and gas reserves. China, Russia and other nations maintain relations, mindful of why sanctions were imposed, by whom, and who supports them.

AIPAC is an unregistered foreign agent operating lawlessly. Representing Israel gives it virtual veto power over war and peace, trade and investment, multi-billion dollar arms sales, enormous Israeli handouts, and all Middle East policies affecting the Jewish state under Democrat and Republican administrations alike.

Political Washington to the highest levels, media scoundrels, and others bow deferentially to its demands, even those harming America. Imagine if AIPAC convinces Obama to attack Iran. Whether or not it’s coming isn’t known.

With no reliable evidence, spurious allegations say Iran carried out final critical stage nuclear weaponization experiments. Alleged explosions and computer simulations thereof were included.

US intelligence reports through early 2011 cite no evidence whatever of an Iranian nuclear weapons program. IAEA’s imminent one may spuriously claim one based on suppositions, not facts.

Along with previous and baseless charges, whether or not it provokes conflict later isn’t known. However, tensions will heighten further. Media scoundrels will regurgitate them. War drums will beat.

Attacking Iran is insane. Doing so will engulf the entire region. General war could follow with potentially grave consequences for all parties.

Anything’s possible, however, given Washington’s permanent war agenda and Israel’s penchant for it. Together with Britain and France, their belligerence threatens humanity.

Hopefully cooler heads will keep current actions from spinning out of control toward the abyss under conditions of all out war. The prospect should make all sides want it avoided at all costs. The alternative is too grim to allow.

Israeli Journalist Critical of His Government

Haaretz writer Gideon Levy discussed how “Insanity, not logic, guides Israel’s leadership,”saying:
Lunacy in Israel prevails. “(I)t is already as plain as day. Israel does not have rational leadership.” Its policies defy logic, including settlement construction on stolen Palestinian land, on and off wars, imprisoning Palestinians lawlessly, and continuing its occupation that decades ago lost all legitimacy.

Threatening war on Iran defies rationality. Nonetheless, “(t)he risks of an Israeli attack are clear, and they are horrific. The danger of Iran using a nuclear weapon is nil” even with one. “Israel is playing with the fires of hell.”

Israeli “megalomania” wants sole Middle East authority to “call the shots in the region as it sees fit. The mens’ men who are threatening Iran now are the real cowards’ cowards. The brave ones….are trying to thwart the insanity from former Mossad chief(s) Meir Dagan” and Ephraim Halevy, as well as “Interior Minister Eli Yishai.”

They may need lots of allies, other US, UK and French ones, and public support to prevent what no one knowing the risks wants. Further updates will follow future prospects.
A Final Comment

Late Sunday, AP headlined, “IAEA: Iran Had Model of Nuclear Warhead,” saying:
The IAEA “plans to reveal intelligence this week suggesting Iran made computer models of a nuclear warhead and other previously undisclosed details on alleged secret work by Tehran on nuclear arms.”
As explained above and in detail earlier, US intelligence reports through early 2011 confirm no evidence of Iranian nuclear weapons development.

Responding on Middle East Online, Farhad Pouladi headlined, “Iran to IAEA: Go Ahead and Publish ‘Counterfeit’ Report,’ ” saying:

Iranian Foreign Minister Ali Akbar Sahehi called IAEA claims “counterfeit,” adding its alleged “documents lack authenticity. We have said repeatedly that their documents are baseless. Iran’s nuclear issue (for IAEA) is not a technical or a legal issue but entirely a political one.”

Its allegations smack of earlier Iraqi WMD ones. In fact, they were baseless lies. IAEA’s Yukiya Amano serves Israeli and Western interests. Accept nothing he says at face value. Without evidence, what’s coming exposes duplicitous suspicions, not facts. Discount them entirely.



 ” IN LOVING MEMORY OF  Rachel Aliene Corrie !! “ ~ Xaniel777

(April 10, 1979 – March 16, 2003)    Rachel Corrie: ‘a true hero’ read full story here 

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