ACLU-NJ Civil Liberties Reporter n 1st Quarter 2012

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Judge rules state officials cannot confiscate signs, food and medicine from protesters

In October, as the Occupy Wall Street movement gained momentum nationwide, Alexander Higgins,

a blogger who specializes in civil liberties issues and peace activism, decided to join a similar protest in Trenton.

Occupy Trenton, an outgrowth of Occupy Wall Street , decided to locate its protest at Veterans Park, opposite the State House. The park seemed like a natural choice since it had been used for political, social and labor demonstrations in the past. When Occupy Trenton first staked out ground on Oct. 6, no rules governed use of the park.

The participants pro-tested peacefully, bring-ing with them coolers of food, medical supplies, political signs and tarps for shelter in case of rain. They also brought a small generator to provide electricity for comput-ers and video equipment so that bloggers like Higgins could live broadcast the protests to the public.

But on Oct. 14, their peaceful protest turned ugly when State Police, citing restrictions outlined in a letter from Raymond Zawacki, the deputy commissioner for Veterans Affairs in the state Department of Military and Veterans Affairs, seized the laptops, signs, food and even medicine from the protesters.

Two weeks later, the ACLU-NJ went to court on behalf of Occupy Trenton and asked a Superior

Court judge to grant a temporary restraining order that would prevent the state from enforcing the rules outlined in in the Zawacki letter. The ACLU-NJ argued successfully that the state failed to follow proper procedures when it made up the restrictions, violating the protesters’ rights to free speech and due process.

“The state cannot arbitrarily create restrictive policies just because it does not like how people are

using a public space,” said ACLU-NJ cooperating attorney Bennet Zurofsky.

Superior Court Judge Mary C. Jacobson agreed with the ACLU-NJ and ordered the state to return the belongings to the protesters. She also granted the temporary restraining order to prevent the state from enforcing most of the rules contained in Zawacki’s letter.For more information about Occupy Trenton v. Raymond L. Zawacki or about the ACLU-NJ’s work on free speech issues, visit www.aclu-nj.org.

ACLU Defends Occupy Trenton’s Free Speech Rights in Court

State Judge Rules Ocean Grove Organization Discriminated Against Same-Sex CoupleCamp Meeting Association rejected couple’s application to celebrate their civil union at a boardwalk pavilion

A state administrative law judge has ruled that the Ocean Grove Camp Meeting

Association violated the state’s Law Against Discrimination when it denied ACLU-NJ clients Harriet Bernstein and Luisa Paster the use of its boardwalk pavilion for their 2007 civil union ceremony.

At the time, the association allowed the public to use the pavilion and had promised access on an equal basis. It rented the pavilion to couples without inquiring as to their religious beliefs. However, it rejected the Ocean Grove couple’s application to use the space, stating that civil unions violated its Methodist doctrine.

“We are pleased with the judge’s findings,” said Bernstein. “When we first started planning our civil union, we had no idea that it would come to this. We weren’t asking the association to change their beliefs. We just wanted them to give us the same opportunity to use a beautiful space that we had seen open for public use.”

Bernstein, 70, a grandmother and retired school administrator and Paster, 64, a

retired academic librarian, met at a retreat in the Poconos in 2000. When the couple decided to tie the knot and have a civil union in 2007 they decided to hold it at a pavilion overlooking the Atlantic Ocean.

In March 2007, the couple went to the office of the Ocean Grove Camp Meeting Association and filled out an application to reserve the Ocean Grove Boardwalk Pavilion. Days later, association officials denied the couple’s application, and returned their $250 deposit with the explanation that civil unions went against the group’s Methodist principles. Bernstein and Paster then turned to the ACLU-NJ which filed a complaint on their behalf.

In December 2008, the state Division on Civil Rights found probable cause that the association violated the state’s

the ACLU-NJ went to court on behalf of occupy trenton successfully striking down some of the rules that the state issued without following proper procedures.

Luisa Paster and Harriet bernstein celebrated their civil union on June 30, 2007. A state judge ruled a nonprofit organization discriminated against the couple when it denied the use of its boardwalk for their civil union ceremony.

Department of Education Releases Charter School Reviewer’s Names One Year After RequestEducation Law Center sought more transparency in charter school application process

the New Jersey Department of Education (DOE) has released public records containing the names

of volunteers brought in to review applications from schools seeking charters from the Commissioner of Education.

The DOE released the records in response to a lawsuit filed by the ACLU-NJ on behalf of the Education Law Center (ELC), charging that the DOE violated the state’s Open Public Records Act. ELC filed the initial request on Nov. 24, 2010 seeking the names of reviewers to determine whether the individuals brought in were qualified to make decisions about charter school applicants on behalf of the state. The DOE released the records nearly one year later.

“The public is entitled to know about the ability and qualifications of these persons to give the DOE objective input on whether an applicant meets the legal and education standards to open a charter in New Jersey,” said ELC Executive Director David Sciarra.

The list of reviewers included people connected to the charter school movement nationally and in New Jersey, as well as lobbyists, activists and DOE staffers.

In addition to seeking the names of reviewers, ELC also asked for materials used to train reviewers, including a Power Point presentation. The DOE initially refused to release the materials but agreed to release them after the lawsuit was filed.

“As a state agency, the Department of Education is obligated to inform the public about who is involved in making these critical policy decisions,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero. “The public has a right to evaluate whether the department made an effort to use objective, qualified reviewers.”To review the documents or to read more about ELC v. NJDOE, visit www.aclu-nj.org.

“the public is entitled to know about the ability and qualifications of these persons to give the Doe objective

input on whether an applicant meets the legal and education standards to open a charter in New Jersey.”

— David Sciarra, ELC Executive Director

Continued on page 2

2 For ACLU-NJ News Updates & Case Reports: www.aclu-nj.org

ACLU-NJ Civil Liberties Reporter n 1st Quarter 2012

Remembering Bill and Virginia HildebrandWhenever William (Bill) Hildebrand, Jr. encoun-

tered injustice, he plunged right in to uncover and eliminate it. This was his practice until he passed away on Dec. 13, 2011. Bill, a longtime ACLU volun-teer and supporter, was 96 years old.

A self-confident but unpretentious man, Bill was motivated by the belief that everyone deserves fair and equal treatment — regardless of their background. In the mid-1960s, at the peak of the Civil Rights movement, Bill and his wife, Virginia (1915-2009) were among the founders of the Fair Housing Council of Maplewood and South Orange. In order to prove that racial discrimination was occurring, Bill recruited his eldest daughter, Chris and her boyfriend to pose as prospective tenants in apartments in Essex County where African American couples had been turned away. The group successfully pressured real estate agents and individuals to end racially discriminatory practices.

During the Vietnam War, Bill crossed the Hudson River to Brooklyn to help draftees from New York

City apply for conscientious objector status. He and Virginia also supported the right of students at Columbia High School in Maplewood to have an anti-war and anti-draft committee.

“We always talked about political issues around the dinner table,” said his daughter, Chris Hildebrand. “Our kitchen and dining room were free speech areas.”

It came as no surprise to his family when Bill began as a legal intake volunteer at the ACLU-NJ office in Newark in 1984. His dedication knew no bounds as he and Virginia eventually took the helm of the journal

ad program — the driving force behind the ACLU-NJ annual dinners.

“Passionate about civil liberties, Bill and Ginny worked tirelessly for many years on the ad journal program. It was a mammoth task that they did flawlessly with their characteristic combination of diligence, diplomacy and attention to detail,” said Deb Ellis, who served as ACLU-NJ legal director from 1989 to 1992. “Although I was only in my mid-30s at the time, I decided that they were a model of how I wanted to live when I was retired.”

In 1995, the ACLU was looking for a test case to pursue the right to leaflet at shopping malls. At the time, peace activists who were against the Gulf War

were told they could not distribute their literature to shoppers. Bill volunteered to leaflet at the Livingston Mall. He was arrested and his role helped the ACLU-NJ convince the New Jersey Supreme Court that owners of shopping malls must allow access to protest groups wishing to leaflet, as malls had become the modern “town squares.”

Bill’s work with the ACLU-NJ office continued for over 20 years until it became physically impossible for him to travel to Newark. By being an intake volunteer he was also able to work on the cases he was particularly passionate about, most notably the ACLU’s work to stop the systematic racial profiling on the New Jersey Turnpike by the State Police.

ACLU-NJ volunteers bill and Virginia Hildebrand worked tirelessly on the ad journal for the annual ACLU-NJ dinner for years. bill also worked as an intake volunteer for more than 20 years.

ACLU-tN Wins Free speech Rights for occupy Nashville NASHVILLE, TN — On Oct. 31 a federal judge ordered the state of Tennessee to stop enforcing rules that violated the free speech rights of the Occupy Nashville protesters. The ruling was in response to a lawsuit filed by the ACLU of Tennessee.

The lawsuit alleged that the state illegally revised the rules controlling Legislative Plaza, arresting protesters without probable cause and due process as a means to chill their free speech. According to the complaint, the new rules were adopted improperly, by fiat in secret and without notice. In addition they were overly broad and vague and posed a financial restriction on free speech, in violation of the demonstrators’ First Amendment rights.

ACLU of Northern California Files suit Against oakland Police DepartmentOAKLAND, CA — The ACLU of Northern California and the National Lawyers’ Guild (NLG) filed a lawsuit in federal court against the Oakland Police Department (OPD) for its egregious constitutional violations against Occupy Oakland demonstrators on Nov. 14. The lawsuit asked for an emergency temporary restraining order to stop police violence against political protesters.

“Excessive police force is never acceptable, especially when it’s in response to political protest,” said Linda Lye, staff attorney at the ACLU of Northern California.

Police shot excessive amounts of tear gas, flashbang grenades and other projectiles into crowds of peaceful protesters. Police also fired other projectiles at protesters who posed no risk of harm, but were engaged in activities protected by the First Amendment, such as filming police at a demonstration.

NYCLU: birthplace of the occupy movementNEW YORK CITY — The New York Civil Liberties Union was a steadfast defender of Occupy Wall Street’s right to free speech throughout the New York City movement, which lasted from mid-September to its forced removal on Nov. 15. When protesters first staked their ground, the NYCLU was present at Zuccotti Park to distribute “Know Your Rights” information, engage demonstrators about their experiences with the NYPD, and supply legal observers who monitored police activity and recorded any instances of police misconduct.

The NYCLU also stepped in on behalf of protestors who were unlawfully arrested on the Brooklyn Bridge and when Mayor Michael Bloomberg threatened to kick out protestors to clean up Zuccotti Park. It also stepped in when a NYPD deputy inspector used pepper spray on protestors who appeared to pose no threat and were confined in crowd-control netting.

ACLU News From Around the Nation: Occupy Edition Ocean GroveContinued from page 1

anti-discrimination law. The case proceeded to the Office of Administrative Law for disposition.

In his written decision on Jan. 12, Judge Solomon A. Metzger of the Office of Administrative Law found that in March 2007, when Paster and Bernstein filled out a reservation form, the pavilion was open to the public without restrictions. The judge determined that the Ocean Grove Camp Meeting Association breached its agreement to make the pavilion available to the public on an equal basis. The association was required to make the pavilion public on a non-discriminatory basis in exchange for a state tax exemption it received. Metzger also noted that while the association is free to practice its mission without government oversight, it had never attached any religious ministry to the wedding venue until it received Paster and Bernstein’s application.

“[The association] was not, however, free to promise equal access to rent wedding space to heterosexual couples irrespective of their tradition and then except [Bernstein and Paster],” Judge Metzger stated.

The administrative law judge’s decision was sent to the Director of the Division on Civil Rights, who had 45 days to adopt, modify or reject it as part of the director’s final decision; otherwise, it becomes a final decision.Once a final decision is issued, a party may appeal to the Appellate Division of the Superior Court.

“This decision affirms New Jersey’s strong protections against discrimination,” said Lawrence Lustberg of Gibbons, P.C., who represents the couple as a cooperating attorney for the ACLU-NJ. “When you open your doors to the public, you can’t treat same-sex couples differently.”

“ We always talked about political issues around the dinner table,” said his daughter, Chris Hildebrand.

“ our kitchen and dining room were free speech areas.”

ACLU-NJ Civil Liberties Reporter n 1st Quarter 2012

Find the ACLU-NJ on Facebook and twitter: www.facebook.com/aclunj and www.twitter.com/aclunj 3

Gov. Chris Christie has vowed to veto any bill in support of marriage fairness

both the Senate and Assembly passed a marriage equality bill in February, but Gov. Chris Christie

has said he will veto any marriage bill that lands on his desk. The Assembly and Senate have until January 2014, the end of this legislative session to gather enough votes to override the veto.

Hundreds of supporters in favor of the marriage equality bill testified in Trenton about the bill. Jeanne LoCicero, ACLU-NJ deputy legal director, was among those who testified on Feb. 2, 2012 before the Senate Judiciary Committee.

Here are some excerpts from LoCicero’s testimony:

Unfortunately, as you have heard and will again hear throughout the day, the Civil Unions Act has failed to provide the equality guaranteed by our state constitution. There are countless examples of extreme hardships and daily indignities that families have endured because loving couples have not been allowed to marry.

The ACLU of New Jersey has been a nonprofit, non-partisan organization that defends and protects our constitutional rights for more than 50 years and has nearly 15,000 members in New Jersey. We have worked for equality for LGBT people and their families for more than 30 years.

I am here to restate the ACLU of New Jersey’s support for marriage equality and ask that you vote in favor of Assembly Bill 1.

After Lewis v. Harris, same-sex couples looked to this legislature to provide for the rights we are entitled. Instead, New Jersey enacted legislation that provided for two separate systems to afford the same rights to different groups of people.

Five years after passage of the Civil Unions Law, the overwhelming evidence now demonstrates that separate is never equal.

Rights cannot exist merely in theory or on paper; they must exist in reality or they are meaningless. And where rights are not equal in application, then equal rights do not exist.

Civil unions have created confusion which has served to complicate and burden people’s lives. As part of my job, I supervise our intake department which receives thousands of requests for assistance every year. Among the people seeking our help are people in civil unions asking for our help. We have intervened when possible, but often we have to refer them to private lawyers to ensure their families are protected. This is an additional burden and expense for same sex families. And I know from my discussions with my colleagues in private practice they often recommend for couples to also get married in a jurisdiction where it is permitted. This is because the terminology means something.

Like many other New Jerseyans, I have to write in “civil union” on many of the forms I have to fill out.

Just two days ago, my wife and I were refinancing our mortgage and ran into complications. Our bank — one of the largest residential real estate lenders in New Jersey — did not know how to process us as “civil union partners.” Because we didn’t fit into their categories, they listed us each as single. This bank would have been able to process things without a hitch if we had been able to call ourselves married. Fortunately, I am an attorney aware of these key issues and refused to sign them until they were adjusted. I am concerned about the legal implications for the couples who have been worn down — because civil unions are never listed in the check boxes — and may not have fought for the change.

I have a 6-year-old daughter and would rather be teaching her about civil unions as an unfortunate chapter in New Jersey history.

You now have the opportunity to right a wrong, and to be on the side of justice, fairness and equality. Please vote in favor of this bill.

ACLU-NJ and Other Advocates Urge Passage of Marriage Equality Bill

When Gov. Chris Christie delivered his State of the State address in January, he declared, “Stand

strong with me and I will stand up for you.” But a report card issued by the American Civil

Liberties Union of New Jersey in February on the governor’s civil liberties record shows that his pledge only applies when he agrees with you. For those concerned with civil liberties, Christie’s record leaves much room for improvement.

When New Jersey Transit fired longtime employee Derek Fenton for burning a Quran at a rally on his day off, Gov. Christie said he had “no problem” with the agency’s decision. The governor’s personal disagreement with Fenton’s act of political expression should not have trumped his obligation to uphold the First Amendment.

When it comes to equality for LGBT people, Christie has spoken up in favor of fair treatment on several fronts including supporting New Jersey’s anti-bullying law. But he stops well short of a commitment to equality by pledging to reject any law that gives same sex couples the freedom to marry. He has proposed putting marriage equality on the ballot for voters to decide. Individual freedoms should not be put up to a majority vote — the right to equality is already promised by the Constitution. It’s up to the legislature and the state to realize those rights.

The governor has spoken out against religious discrimination. Amid uproar about plans for a

community center near Ground Zero, Christie emphasized the vital role American Muslims play in civic life. Later, he squelched a potential witch hunt surrounding his appointment of Judge Sohail Mohammed, a Muslim, to New Jersey Superior Court.

Christie’s refusal to drag our state into the nasty politics of demonization, even at the risk of alienating members of his party, embodies what civil liberties is all about — taking stands for what’s right, even when that stand is unpopular.

Unfortunately, Christie’s respect for civil liberties often wanes when it comes to some of society’s most vulnerable members. The governor eviscerated funding for women’s health and family planning, reducing access to basic health care for New Jersey women and children in need. He similarly withdrew an application for federal family planning funding. With these acts, Gov. Christie has denied poor women access to basic reproductive health care like routine breast exams and pap smears, making their access to medical treatment a political football in the battle for control of women’s bodies.

From day one Christie made no secret of his personal beliefs and interests, and it’s good to know where he stands. But when you have won an election to represent everyone in the state, you have the obligation to promote the principles embodied in the United States and New Jersey Constitutions over your own beliefs. In the next two years, we hope Gov. Christie will give greater deference to civil liberties and live up to his promise to stand up for New Jerseyans. He must respect our fundamental rights, regardless of whether he agrees with our fundamental beliefs.

Gov. Christie’s Report Card Shows Room for Improvement

FRom tHe exeCUtIVe DIReCtoR oF tHe ACLU-NJ

bY DeboRAH JACobsACLU-NJ Executive Director

the ACLU-NJ bids bobby Conner, the first open Governance Project attorney, a fond farewell and thanks him for his relentless pursuit of making government more transparent for everyone.

New Jersey Report Card

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Date:

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Freedom of Religion B Freedom of Speech F LGBT Rights B- Open Government D Police Practices C Privacy Rights C Reproductive Rights F Separation of Powers D

Gov. Chris Christie

January 2012

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Help the ACLU of New Jersey build a safe and free future by investing in its mission. Defend liberty annually, quarterly, monthly. Make a special 50th anniversary tax deductible gift to the ACLU-NJ Foundation. For more information on how you can give monthly, call us at 973-642-2086. Visit our website to make a gift today: www.aclu-nj.org/donate

Tributes

Tributes are contributions made to honor or remember special friends, family, colleagues and occasions.

To have your tribute appear in the Civil Liberties Reporter, please contact the ACLU-NJ office at: 973-642-2086 or P.O. Box 32159, Newark, NJ 07102.

Civil Liberties ReporterThe ACLU-NJ and the following volunteers contributed to this issue of the Civil Liberties Reporter: Peggy Brooks, Jay Gartman, Sylvia Stengle

Photo of Occupy Trenton provided by Occupy Trenton. Photo of Bill and Virginia Hildebrand was provided by Chris Hildebrand. Photo of Luisa Paster and Harriet Bernstein was provided by Harriet Bernstein.

Published Winter, Spring, Summer and Fall by the American Civil Liberties Union of New Jersey, P.O. Box 32159, Newark, NJ 07102 973-642-2084 n info@aclu-nj.org n www.aclu-nj.org ISSN: 0009-7934

LIGHT THE TORCH OF LIBERTY: For the Next 50 Years

Faces of Liberty:Jim Gallagher, 81, Pompton Plains

When Jim Gallagher put up his first home for sale, a group of neighbors visited him

and expressed an interest in buying the property. The neighbors bluntly told him they wanted to buy the house to prevent a black family from moving in.

Gallagher was shocked.“I instantly became aware of how virulent and rampant racial discrimination was

right under my nose,” he said. This incident started a journey for Gallagher, leading him to support groups that fought discrimination like the ACLU of New Jersey.

Gallagher’s commitment to racial justice was strengthened in 1965, when he served as executive director of the John LaFarge Institute. It was just after the Civil Rights Act was passed and he participated in meetings with national clergy leaders, civil rights activists, and business leaders to decide what steps to take after the passage of the landmark legislation. To this day Gallagher remains proud that the conference contributed to pressuring political leaders to start a dialogue concerning equal opportunity in employment. These conversations about achieving equal justice were a turning point, raising awareness about the injustices happening around him.

In the 1990s, when he heard the reports of racial profiling by New Jersey State troopers and about a Nutley swim club’s refusal to allow minorities in, he was outraged. He also saw a common thread in these two situations— the ACLU was there each time, standing up for these people’s rights.

That’s when Gallagher became a card-carrying ACLU member, educating himself about the ACLU by reading its quarterly newsletter and other publications. Racial justice wasn’t the only thing on his mind by this time. He was also concerned about freedom of speech, abortion rights, LGBT rights, and intrusion of the state on citizens’ privacy.

“The ACLU is on what I consider to be the right side of the law, in following up and defending people who cannot defend themselves,” Gallagher said, “I look at the ACLU as a steady light focused on a broader array of abuses in our society.”

Gallagher has four daughters, three of whom are trustees at the Gallagher Family Fund making sophisticated grants that support organizations like the Civil Liberties and Public Policy program at Hampshire College in Massachusetts. He is also active with NJ Peace Action and is a longtime board member of Covenant House in Newark.

For Gallagher the ACLU is “…more than a guardian of our rights, but a defender of all of our rights … By making contributions I’m protecting people.”

In memory of Puneet bhandariNarendra C. Bhandari

In honor of Peter & Joan eilbottLassus Wherley & Associates, PC

In memory of Joseph Casimir Finley, IIVirginia Louise Finley

In honor of Jay GartmanRuth Berkowitz

In memory of Virginia & William Hildebrand, Jr.

Deb Ellis & Hal StrelnickSally C. Fullman

Ann Marie CapuzziLouise Gantman

Edward & Nicki KesslerSusan J. MacKinnon & Richard Wahlgren

Brendan A. O’FlahertyEllen S. Wilson & Fredric V. Price

Beth RubinBeth H. & Ronald C. Steele

In memory of Joseph KruskalRachel Kruskal

In honor of Anne LaskowichLisa Laskowich

In honor of Jeanne LoCicero, Frank Corrado & ed barocas

Sharon Brenner Cadalzo

In memory of sandy LugerSusan Youdovin

In honor of Gary Nissenbaum, esq.Community Foundation of New Jersey,

Hoover Family Fund

In honor of occupy trentonJohn Cokos

In honor of Paul trachtenberg, esq.Jerald D. & Jaclyn D. Baranoff

In honor of Allan WillingerRichard Willinger

Please join the ACLU-NJ for the annual U.S. Supreme Court Briefing featuring remarks from steven R. shapiro, esq., Legal Director of the National ACLU.

Mr. Shapiro has presented more than 200 ACLU briefs to the U.S. Supreme Court. He will provide highlights and inside analysis on the state of civil liberties before the highest court.

The ACLU-NJ will also present the bill of Rights Award to William s. singer, esq. and the Legal Leadership Award to Amy Gottlieb, esq. and to the Center for social Justice at seton Hall Law school.

Monday, March 26, 20126 p.m. Reception

7 p.m. Remarks & Program

The Newark ClubOne Newark Center, 22nd Floor, Newark, New Jersey

Tickets and sponsorship opportunities are available by contacting 973-854-1735 or events@aclu-nj.org

Limited Capacity

ACLU-NJU.S. Supreme Court Briefing

ACLU-NJU.S. Supreme Court Briefing

mARCH 26, 2012