Petition for Writ of Certiorari — Christopher Binetti, Petitioner v. New Jersey, et al.

COPY

FILED

PREPARED BY THE COURT

JANUARY 10, 2022

SUPERIOR COURT OF NJ

MERCER VICINAGE

CHANCERY

DR. CHRISTOPHER BINETTI,

PHD, PROSE

Plaintiff,

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION

GENERAL EQUITY

MERCER COUNTY

DOCKET NO. C-120-20

v.

CIVIL ACTION

STATE OF NEW JERSEY,

D.

MURPHY,

PHILIP

GOVERNOR OF THE STATE

OF NEW JERSEY, GURBIR S.

GREWAL,

ATTORNEY

GENERAL OF THE STATE OF

NEW

JERSEY,

THEIR

OFFICIAL CAPACITY AS

AGENTS OF THE STATE

DEFENDANTS, INCLUDING

THE LEGISLATURE, THE

OFFICE OF THE SECRETARY

FOR HIGHER EDUCATION

AND THE DEPARTMENT OF

STATE,

Defendants.

ORDER GRANTING DEFENDANTS’

MOTION FOR AN ORDER

DISMISSING PLAINTIFF’S

COMPLAINT WITH PREJUDICE

THIS MATTER having come before the Court, the Hon. Robert Lougy,

A.J.S.C., presiding, on the application of Defendants, represented by Deputy

Page 1 of29

Attorney General Jacqueline R. D’Alessandro, appearing, for an order dismissing

Plaintiffs complaint with prejudice for failure to state a claim upon which relief

may be granted; and Plaintiff Christopher Binetti, appearing as a self-represented

litigant, having filed opposition; and Defendants having filed a reply; and Plaintiff,

with the leave of the Court, having filed a sur-reply; and the Court having considered

the parties’ pleadings and arguments; and for the reasons as stated below; and for

good cause shown;

IT IS on this 1 Oth day of January 2022 ORDERED that:

1.

Defendants’ motion to dismiss Plaintiff’s Second Amended

Complaint is GRANTED.

2.

Plaintiffs Second Amended Complaint is DISMISSED WITH

PREJUDICE.

3.

This Order shall be deemed filed and served upon receipt from a

Judiciary email address (xxx@njcourts.gov). Additionally, a copy of

this Order shall be served on Plaintiff within seven days of its receipt

by the moving parties.

/s/ Robert Lougy_________________

ROBERT LOUGY, A.J.S.C.

X

OPPOSED

UNOPPOSED

Binetti v. State of New Jersey, et al.

January 10, 2022

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PURSUANT TO RULES l:6-2(f) AND l:7-4(a), THE COURT PROVIDES

FINDINGS OF FACT AND CONCLUSIONS OF LAW HERE.

This matter comes before the Court on Defendants’ application for an order

dismissing Plaintiff’s second amended complaint. Plaintiff opposes that

application. The Court grants Defendants’ requested relief because Plaintiff

articulates no individualized harm, and thus lacks standing, and additionally

because his claims are legally infirm. Because his claims are irredeemably flawed,

the Court grants Defendants’ application for an order dismissing the complaint

with prejudice.

Plaintiff initially filed his Verified Complaint and Order to Show Cause

seeking preliminary injunctive relief pursuant to Rule 4:52-l(a) on December 14,

2020. Defendants filed a Motion to Dismiss Plaintiffs initial complaint on

December 28, 2020. On December 29, 2020, the Court denied Plaintiff’s Order to

Show Cause. Plaintiff filed his first amended complaint on January 15, 2021.

Defendants submitted a Motion to Dismiss the first amended complaint on

February 25, 2021. On May 19, 2021, the Court granted Plaintiffs request for

leave of court to amend the complaint a second time, without reaching the question

of whether such amendments would be futile. Defendants then filed this motion to

dismiss.

Binetti v. State of New Jersey, et al.

January 10, 2022

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On December 16, 2019, the State Legislature voted to present two referenda

on the 2020 ballot. See Legislative Digest for December 16, 2019, at 1-2,

available at https://www.njleg.state.nj.us/legislativepub/digest/121619.pdf (last

visited January 3, 202). On November 3, 2020, voters approved both referenda,

one regarding the legalization of regulated cannabis (2020 Public Question No. 1)

and the other delaying the State’s voting redistricting process (2020 Public

Question No. 3).1 Second Amend. Compl.,

1, 3-16; Defs.’ Br. at 1-2. Public

Question No. 1 was accompanied by an interpretive statement. Defs.’ Br. at 2.

After the referenda passed, the New Jersey Constitution was amended, and the

Legislature passed, and the Governor approved various enabling statutes. Second

Amend. Compl.,

15-16; Defs.’ Br. at 1-2.

Regarding the referenda, Plaintiff alleges Defendants violated Articles I and

IX of the New Jersey Constitution, the New Jersey Civil Rights Act, N.J.S.A. 10:6-

2c, and the federal RICO statute. First, Plaintiff argues the referenda were

improperly put on the ballot in violation of Articles I and IX of the New Jersey

Constitution as well as the New Jersey Civil Rights Act, so the resulting laws are

1 Per N.J.R.E. 201(a)(3), the Court takes judicial notice that 2,737,746 voters (67

percent) voted in favor of Question 1; 1,343,637 voters (23 percent) voted against

it. Most voters in each of the State’s counties voted in favor of the referenda. See

https://nj.gov/state/elections/assets/pdf/election-results/2020/2020-official-generalresults-public-question-I.pdf (last visited January 3, 2022).

Binetti v. State of New Jersey, et al.

January 10, 2022

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13-38, 86-106. In support of

also unconstitutional. Second Amend. Compl.,

this theory, Plaintiff explains Senators who advanced the referenda to the ballot

were unauthorized to vote for it because the State improperly included

unauthorized immigrants in the 2010 redistricting process that led to the Senators’

election to office. Id. at ^39-59. Second, Plaintiff alleges both referenda

discriminate against Italian Americans in violation of the New Jersey Civil Rights

Act, the New Jersey Law Against Discrimination, and the state and federal Equal

Protection Clauses because that group was “disproportionately opposed to the

legalization of marijuana,” “will not be allowed to participate in dispensaries

proportionate to their size of the [New Jersey] population,” and continued

inclusion of unauthorized immigrants in voting districts and postponing

redistricting disproportionately disadvantages Italian Americans. Id. at

58-59,

112-23. Plaintiff also claims the legislature committed fraud, violated Article IX,

and violated the New Jersey Civil Rights Act because the statute passed to enable

Public Question No. 1 is inconsistent with the language in the Public Question

itself. Id. at ffl] 73-85. Finally, Plaintiff alleges he was considered “a major

candidate” for a position in the voter redistricting commission but that the

postponement of the redistricting process as authorized by Public Question No. 3

deprived him of that opportunity. Id. at 515113-38.

Binetti v. State of New Jersey, et al.

January 10, 2022

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Plaintiff separately alleges Defendants violated the New Jersey Law Against

Discrimination, the New Jersey Civil Rights Act, the Equal Protection Clauses of

both the U.S. and New Jersey Constitutions, and federal statutes § 1981 and § 1983

and committed common law tortious interference because Defendants

discriminated against Plaintiff based on his Italian American and Mediterranean

American ethnicity. Plaintiff contends the State has discriminated against Italian

Americans and Mediterranean Americans in higher education because the State

“categorically denied” Italian American students, employees, and applicants

affirmative action, the groups are underrepresented in public higher education, and

the State excludes the groups in calculating its own demographic statistics. Id. at

124-208. Plaintiff claims to have evidence of a public employee stating the

employee “believed that it was the job of policy makers to reduce Italian

Americans’ political representation” but Plaintiff failed to include such evidence.

Id. at 5 170. Plaintiff also alleges that executives at Rutgers-Newark and Rutgers-

New Brunswick stated to him that Italian Americans will never gain equal civil

rights or respect without State action. Id. at

187. Plaintiff claims he was denied

employment as an adjunct professor, despite his qualifications, due to his Italian

American ethnicity. Id. at

183-208.

Binetti v. State of New Jersey, et al.

January 10, 2022

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Defendants argue that Plaintiff’s complaint is woefully deficient.

Defendants argue Plaintiff lacks standing to bring his claims regarding Public

Question No. 1 and that public laws that followed it because he did not and will not

suffer articulable injury, he has not established a substantial likelihood he would be

harmed, and he did not establish third-party standing. Defs.’ Br. at 5-8. Even if

Plaintiff has standing, his claims on Public Question No. 1 are time-barred and

Plaintiff did not overcome the high standard of deference afforded to the

Legislature’s interpretive statement necessary to deny Defendant’s motion to

dismiss. Id. at 8-11.

Further, Defendants assert that none of Plaintiff s claims are viable. First,

Plaintiff cannot sustain his § 1981, § 1983, or New Jersey Civil Rights Act claims

because Defendants are not a “person” within the meaning of those statutes. Id. at

12-14. Further, states are immune from claims under § § 1981 and 1983. Id. at 15.

Plaintiff also cannot seek relief under the New Jersey Civil Rights Act for any

alleged procedural deficiencies regarding the referenda because that statute only

permits claims alleging substantive due process or equal protection rights. Id. at

14. On top of that, Defendants contend Plaintiff did not provide sufficient

pleadings or proof to support these claims. Second, Plaintiff cannot sustain his

discrimination claims under the NJLAD or New Jersey Equal Protection Clause

Binetti v. State of New Jersey, et al.

January 10, 2022

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because the allegations in the complaint do not even establish a prima facie case of

discrimination. Id. at 16-19, 22-23. Likewise, Plaintiffs complaint does not allege

enough facts or prove the allegations regarding the federal RICO claim and the

tortious interference claim. Id. at 19-22.

Plaintiff, in his opposition, “voluntarily dismisses with prejudice Count X

and any mention of liability of the State itself under NJCRA and Sections 1983 and

1981.” Pl.’s Opp. at 51. Plaintiff asks the Court to uphold claims I-IX. Plaintiff

also contends in his opposition that he is “no longer asserting” his N.J.S.A. 19:3-6

claim. Id. at 8.

Defendants, in reply, reiterate that Plaintiff lacks standing to assert these

claims and fails to provide sufficient pleadings or proof of support. Additionally,

Defendants argue Plaintiff improperly asserts claims against State agents acting in

their official capacity, which is prohibited under NJCRA, § 1983, and § 1981.

Defs.’ Reply Br. at 1, 4, 7, 14.

Plaintiff, with leave of the Court, filed a sur-reply. Plaintiff asserts an

additional allegation in his sur-reply. He states that he was forced to “retreat while

in a public place” due to an unknown individual allegedly smoking marijuana at

the train station. Pl’s Sur-reply at 2. He alleges he suffered an irreversible harm

Binetti v. State of New Jersey, et al.

January 10, 2022

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due to his exposure to the assumed marijuana smoke.2 Id. at 3. Plaintiff reasserts

his claims for injunctive relief and monetary damages. Id. at 4. Additionally, he

continues to argue the law permits him to bring claims against Defendants under

the New Jersey Constitution and the United States Constitution, and Defendants’

actions establish a pattern of discrimination impacting Italian Americans. Id. at 4,

7.

Defendants move to dismiss Plaintiff’s complaint on two grounds: (a) lack of

standing, and (b) failure to state a claim. The Court acknowledges that some

2 Plaintiff’s late asserted claim does not change the Court’s conclusion. First,

Plaintiff does not properly certify to the alleged harm and provides the information

in the body of his rebuttal. Rule 1:6-6 constrains the Court’s consideration of

“facts not appearing on record or not judicially noticeable” to “affidavits made on

personal knowledge, setting forth only facts which are admissible in evidence to

which the affiant is competent to testify.” As Pressler and Vemiero explain, “[t]he

requirements of the rule also are not met by affidavits containing argument, other

forms of hearsay and general factual or legal conclusions.” Pressler & Vemiero,

Current N.J. Court Rules, comment on R. 1:6-6 (Gann 2022). Facts belong in

certifications or, in this instance, Plaintiff s complaint. Second, under the motion

to dismiss standard the Court limits its examination to evaluating the legal

sufficiency of the facts alleged on the face of the complaint. Printing MartMorristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citing Rieder v. Dep’t

of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). Therefore, the Court may

not consider alleged facts outside of Plaintiff s second amended complaint.

Finally, even if the Court were to factor Plaintiffs new allegations into its analysis,

the outcome would not change for the reasons stated below. In other words,

Plaintiff s newly asserted facts provide him no assistance in avoiding a prejudicial

dismissal of his complaint. Any amendment of the complaint to include these facts

would be futile.

Binetti v. State of New Jersey, et al.

January 10, 2022

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courts consider a lack of standing to be a component of a Rule 4:6-2(e) claim, see

In re Ass’n of Trial Lawyers of Am., 228 N.J. Super. 180, 182, (App. Div. 1988),

but the defenses require a different analysis. First, standing. To challenge the

referenda and resulting amendment to the New Jersey Constitution, Plaintiff must

first establish standing. “The concept of standing in a legal proceeding refers to a

litigant’s ‘ability or entitlement to maintain an action before the court.’” N.J.

Dep’t of Envtl. Prot. v. Exxon Mobil Corp., 453 N.J. Super. 272, 291 (App. Div.

2018) (quoting People for Open Gov’t v. Roberts, 397 N.J. Super. 502, 508-09

(App. Div. 2008)). As a threshold determination, “[a] lack of standing ...

precludes a court from entertaining any of the substantive issues” raised by a

litigant. Ibid, (quoting EnviroFinance Grp, v. Envtl. Barrier Co., 440 N.J. Super.

325, 339. Defendants acknowledges that New Jersey has a much more liberal

standing doctrine than federal case law, see People for Open Gov’t, 397 N.J.

Super, at 509, but argue that Plaintiff fails to meet even this low threshold.

“A litigant has standing only if the litigant demonstrates ‘a sufficient stake and

real adverseness with respect to the subject matter of the litigation [and a]

substantial likelihood of some harm ... in the event of an unfavorable decision.’”

Edison Bd. of Educ. v. Zoning Bd. of Adj, of the Twp. of Edison, 464 N.J. Super.

Binetti v. State of New Jersey, et al.

January 10, 2022

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298, 306 (App. Div. 2020) (alterations in originals) (quoting Jen Elec., Inc, v. Cty.

of Essex, 197 N.J. 627, 645 (2009)). As the Appellate Division explained:

The “essential purpose” of the standing doctrine in New

Jersey is to “assure that the invocation and exercise of

judicial power in a given case are appropriate. Further, the

relationship of plaintiffs to the subject matter of the

litigation and to other parties must be such to generate

confidence in the ability of the judicial process to get the

truth of the mater and in the integrity and soundness of the

final adjudication.”

ITriffm v. Somerset Valley Bank, 343 N.J. Super. 73, 80

(App. Div. 2001) (quoting State Chamber of Commerce v.

Election Law Enf t Comm’n, 82 N.J. 57, 69 (1980)).]

“The threshold to prove a party’s standing is ‘fairly low.’” EnviroFinance Grp.,

LLC, 440 N.J. Super, at 340 (quoting Reaves v. Egg Harbor Twp., 277 N.J. Super.

360, 366 (App. Div. 1994)). Thus, where “the proceeding serves the public

interest” and the “plaintiff is not simply an interloper,” standing will likely be

found. N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 415 (App.

Div. 1997) (quoting In re Quinlan, 70 N.J. 10, 34-35 (1976)). In determining the

question of a party’s standing in a civil matter, the Court also considers if the issue

implicates a substantial public interest. In re Grant of Charter to Merit Preparatory

Charter Sch, of Newark, 435 N.J. Super. 273, 280 (App. Div. 2014) (finding

standing where issue involved “substantial public interest”); Finkel v. Twp. Comm,

of Hopewell, 434 N.J. Super. 303, 315-16 (App. Div. 2013).

Binetti v. State of New Jersey, et al.

January 10, 2022

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An individual’s ability to assert the interests of third parties is limited. In

State Chamber of Commerce, the Supreme Court determined the plaintiffs

possessed standing to assert the rights of others even if their personal harm was

“slight or indirect” because there was a significant harm to others and “First

Amendment values [were] threatened.” 82 N.J. at 68. The Court noted “the

relationship of plaintiffs to the subject matter of the litigation and to other parties

must be such to generate confidence in the ability of the judicial process to get to

the truth of the matter and in the integrity and soundness of the final adjudication.”

Id. at 69. Ultimately, “the standing doctrine serves to fulfill the paramount judicial

responsibility of a court to seek just and expeditious determinations on the ultimate

merits of deserving controversies.” Ibid.

Defendants argue that Plaintiff fails to establish standing on every

ground. First, they argue that fails to demonstrate a “sufficient stake or real

adverseness” in relation to the subject matter of the litigation. Second, they argue

that he fails to show that he will experience harm in the event of an unfavorable

decision. Third, they argue that he fails to establish any entitlement to assert

claims on behalf of third parties or citizens of the State.

Plaintiff asserts that his complaint alleges that Question 3 harmed him by

depriving him of a career opportunity and that Question 1 ’s passage harmed him as

Binetti v. State of New Jersey, et al.

January 10,2022

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a member of the population identifying as Italian Americans. Additionally, he

argues that his complaint alleges harm insofar as Defendants enacted policies

through unconstitutional and illegal means.

The Court finds that Plaintiff lacks standing to bring his numerous and wideranging claims. Plaintiff has failed to demonstrate a cognizable harm. Plaintiff

does not provide concrete statements to indicate “adverseness with respect to the

subject matter, and a substantial likelihood that the party will suffer harm in the

event of an unfavorable decision.” In re Camden Cty., 170 N.J. at 449. Plaintiff

has failed to demonstrate a sufficient stake in the litigation. Plaintiff alleges the

State’s engagement in systemic ethnic discrimination against Italian Americans is

“the fundamental issue from which the rest of the claims arose.” Pl.’s Opp. at 5.

Plaintiff contends multiple times in his opposition that his claims “can be proven,

if the Plaintiff is allowed discovery.” Pl.’s Opp. at 6, 13, 14. Discovery may not

be used as a tool to formulate a legal theory. Here, Plaintiff contends, if given the

opportunity through discovery, he can show he lost job opportunities and suffered

discrimination based on his status as an Italian American. Plaintiff fails to provide

the Court with a starting point to support his request for discovery. Plaintiff simply

contends the State’s actions caused him to lose employment opportunities without

Binetti v. State of New Jersey, et al.

January 10, 2022

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alleging any facts to support his claim of widespread discrimination against Italian

Americans by the State.

Plaintiff asks the Court to second-guess the November 3, 2020 referendum,

subsequent amendment and enabling legislation without providing proof of a

substantial likelihood of harm. He asks the Court to allow time for discovery so he

can attempt to gather information that may or may not support his sweeping

assertions. Plaintiff may disagree with a policy but to legally challenge the policy

Plaintiff must “generate confidence in the ability of the judicial process to get to

the truth of the matter and in the integrity and soundness of the final adjudication.”

State Chamber of Commerce. 82 N.J. at 69. Furthermore, Plaintiff provides no

allegations in support of his claim that the rights of others are threatened by the

actions of the State. Plaintiffs relationship to the subject matter does not generate

confidence that a judicial proceeding will get to the heart of the claims being

asserted.

The Court afforded Plaintiff the opportunity to amend his complaint. The

Court, having reviewed the second amended complaint, the parties’ briefs, and

giving Plaintiff all the benefits of a generous and hospitable approach, concludes

that Plaintiff fails to establish standing to bring the claims that he alleges. He does

not articulate harm to himself, and thus lacks standing to sue on his own behalf.

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January 10,2022

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He does not assert any nonspeculative harms regarding third persons and fails to

establish a basis to assert claims on behalf of anyone other than himself. Given

these conclusions, the Court could stop its analysis here. The Court will

nevertheless address the merits of Plaintiff’s claims to demonstrate that, even were

a court to conclude that Plaintiff has standing, he fails to state a claim upon which

relief may be granted.

Defendants argue that, even if Plaintiff has standing to bring his alleged

claims, the amended complaint fails to state any legally cognizable claim. The

Court evaluates such a defense under the Printing Mart-Morristown framework. In

determining whether a plaintiff has failed to state a claim upon which relief can be

granted under Rule 4:6-2(e), the Court limits its examination to evaluating the legal

sufficiency of the facts alleged on the face of the complaint. Printing MartMorristown, 116 N.J. at 746. The Court “searches the complaint in depth and with

liberality to ascertain whether the fundament of a cause of action may be gleaned

even from an obscure statement of claim, opportunity being given to amend if

necessary.” Ibid, (citing Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J.

Super. 244, 252 (App. Div. 1957)). At this preliminary stage of the litigation, the

Court is not concerned with the ability of plaintiffs to prove the allegation

contained in the complaint; therefore, plaintiffs are entitled to every reasonable

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inference of fact. Ibid, (citing Indep. Dairy Workers Union v. Milk Drivers Local

680, 23 N.J. 85, 89 (1956)). In short, “the test for determining the adequacy of a

pleading [is] whether a cause of action is ‘suggested’ by the facts.” Ibid, (citing

Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). “The examination

of a complaint’s allegations of fact required by the aforestated principles should be

one that is at once painstaking and undertaken with a generous and hospitable

approach.” Ibid. Dismissals “should be granted in only the rarest of instances.”

Printing Mart-Morristown, 116 N.J. at 772.

If the complaint states no basis for relief, dismissal of the complaint is

appropriate: “[d]iscovery is intended to lead to facts supporting or opposing a legal

theory; it is not designed to lead to formulation of a legal theory.” Camden Cty.

Energy Recovery Assocs., L.P, v. DEP, 320 N.J. Super. 59, 64 (App. Div. 1999).

Thus, “if the complaint states no claim that supports relief, and discovery will not

give rise to such a claim, the action should be dismissed.” Dimitrakopoulos v.

Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 107-08 (2019)

(citing Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103,

113 (App. Div. 2011); Camden Cty. Energy Recovery, 320 N.J. Super, at 64-65).

The Court may dismiss some of the counts without dismissing the entirety of the

case. See Jenkins v. Region Nine Housing, 306 N.J. Super. 258 (App. Div. 1997).

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Ordinarily, a dismissal for failure to state a claim is without prejudice, and

the court has the discretion to permit a plaintiff to amend the complaint to allege

additional facts to state a cause of action. Hoffman v. Hampshire Labs, Inc., 405

N.J. Super. 105, 116 (App. Div. 2010). Trial courts should not dismiss complaints

if the facts suggest a potential cause of action that may be better articulated by an

amendment of the complaint. Printing Mart-Morristown, 116 N.J. at 746.

However, “our courts have not hesitated to dismiss complaints with prejudice

when a constitutional challenge fails to state a claim.” Teamsters Local 97 v.

State, 434 N.J. Super. 393, 413 (App. Div. 2014).

COUNT I

Count I of Plaintiff’s complaint alleges that Public Questions 1 and 3 violate

Article I and Article IX of the New Jersey State Constitution. Article I, is of

course, the bedrock article that guarantees concepts such as liberty, equal

protection, and a “Government [] instituted for the protection, security, and benefit

of the people.” It alleges that the public referenda violate the New Jersey Civil

Rights Act in numerous ways.

Civil claims for a violation of the New Jersey Constitution may only be

asserted by way of the NJCRA, which is interpreted analogously to Section 1983.

Martin v. Unknown U.S. Marshals, 965 F. Supp. 2d 502, 548 (D.N.J. 2013).

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Furthermore, the NJCRA was “modeled on § 1983, which the United State

Supreme Court long ago determined did not apply to the states.” Brown v. State,

442 N.J. Super. 406, 425 (App. Div. 2015). Crucially, “neither a State nor its

officials acting in their official capacities are ‘persons’ under § 1983.” Will v.

Mich. Dep’t of State Police, 49 U.S. 58 (1989). The NJCRA does not define

“person,” although the Legislature has elsewhere defined the term as:

The word “person” includes corporations, companies,

associations, societies, firms, partnerships and joint stock

companies as well as individuals, unless restricted by the

context to an individual as distinguished from a corporate

entity or specifically restricted to one or some of the above

enumerated synonyms and, when used to designate the

owner of property which may be the subject of an offense,

includes this State, the United States, any other State of the

United States as defined infra and any foreign country or

government lawfully owning or possessing property

within this State.

[N.J.S.A. 1:1-2.]

The Court notes, a “state official in his or her official capacity, when sued

for injunctive relief would be a person under § 1983 because ‘official-capacity

actions for prospective relief are not treated as actions against the State.’” Will, 49

U.S. at 71 n. 10 (citation omitted).

Plaintiff asserts Defendants violated the New Jersey Constitution by

permitting the referenda and subsequent amendment. As such, his claim must be

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reviewed under the NJCRA. Martin, 965 F. Supp. 2d at 548. Plaintiffs claims are

asserted against Defendants in their official capacity as agents of the State.

Through the lens of NJCRA, as interpreted under § 1983, Plaintiffs claims do not

survive. Defendants are literally persons “[b]ut a suit against a state official in his

or her official capacity is not a suit against the official but rather is a suit against

the official’s office.” Will, 49 U.S. at 71. Plaintiffs claims under the New Jersey

Constitution, the NJCRA, and § 1983 are suits against the State itself and may not

survive under the law.

This prohibition additionally extends to Count II of Plaintiff s complaint,

which alleges various infirmities that violate the NJCRA. Count II alleges that the

process by which the Legislature presented Public Question 1 to the voters, who

approved it, violated Article IX of the Constitution and Public Question 1 is, thus,

invalid. The complaint alleges that the Public Question was “not properly enacted

under Article IX” and that the Legislature “did not properly adhere to Article IX.”

Second Am. Compl., at

29, 35.

Plaintiffs complaint regarding the Public Questions is deeply flawed.

Fundamentally, it explicitly seeks to disenfranchise and erase the votes of more

than four million voters. Plaintiff had almost a year to bring his challenge to the

adequacy of the Legislature’s interpretive statement to Public Question 1 and he

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failed to do so. While the Court understands that Plaintiff is a self-represented

litigant, the audacity of his requested relief is astounding, particularly when he had

a year to seek judicial relief before the voters exercised their franchise and voiced

their opinions. Indeed, the State’s jurisprudence has several examples of plaintiffs

litigating the adequacy and fairness of interpretive statements explaining public

questions. In Gormley v. Lan, the appellant appealed the interpretive statement

the day after the Secretary of State announced the final version. 181 N.J.

Super. 7, 10 (App. Div. 1981). The Appellate Division addressed the matter

promptly. The Supreme Court then decided the matter on an emergent basis,

rendering an “[i]mmediate decision ... in order to allow county clerks time to

prepare and distribute ballots sufficiently in advance of election day. ”

Gormley v. Lan, 88 N.J. 26, 29 (1981). The Court’s emergent order “decided

that the proposed interpretive statement issued by the Secretary of State was

unfair” and “suggested, but did not order, an alternative, which was thereafter

adopted by the Secretary of State and actually used on the ballot.” Ibid.

Together, the Gormley decisions demonstrate how a party can challenge an

interpretive statement, obtain prompt relief to a meritorious challenge, while

preserving the right of New Jersey residents to exercise their franchise.

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Gormley also emphasizes “the glaring inappropriateness of judicial

management and supervision of such matters.” Id. at 38.

Substantively, Plaintiff’s challenge to the legislative interpretive statement

fails. As McKenzie v. Corzine explains, 396 N.J. Super. 405, 417 (App. Div.

2007), this Court applies an even more deferential standard in this matter than

applied in Gormley, 88 N.J. at 39 (applying standard that determination should not

be overturned “unless they are manifestly corrupt, arbitrary or misleading”),

because the Legislature adopted the interpretive statement at issue here. As the

panel explained, the Gormley Court was considering the judgment of Executive

Branch officers: the Attorney General and the Secretary of State. 396 N.J. Super,

at 418. The McKenzie panel, and this Court, were and are presented with

challenges to a legislative interpretive statement, where judicial intervention is

limited to “a circumstance only when the interpretive statement is so unclear as to

preclude the voters ’ understanding of the true purpose of the question or so

substantially unbalanced as to be biased.”3 Id. at 419. If “the Legislature’s

3 The McKenzie court referenced Chief Justice Wilentz’s comments in Gormley,

which only underscores the deference accorded both executive and legislative

interpretive statements. See Gormley, 88 N.J. at 39 (“Rare is the case where the

inadequacy of the interpretive statement will justify the risk of judicial

intervention.”). Writing for a unanimous court, the Chief Justice noted the Court’s

doubt that “many voters decide a public question primarily on the content of the

interpretive statement annexed to it. We also entertain substantial doubts as to the

Binetti v. State of New Jersey, et al.

January 10, 2022

Page 21 of 29

interpretive statement is fair and balanced, [] that alone is determinative of the

issues raised. It does not matter that a better, more informative statement could

possibly be crafted.” Id. at 426.

Here, Plaintiff’s various objections and “quarrels,” ibid., to the Legislature’s

interpretive statements fail to demonstrate that the interpretive statement was

unfair. It adequately informed the voters of the ramifications of the Public

Question, and the Court doubts that the voting public misunderstood the import of

the votes cast. Finally, the Court rejects the strain of argument advanced in

Plaintiffs complaint that the Legislature was constrained in passing enabling

legislation by the language of the interpretive statement. Second Am. Compl., at

73-81. Such a constraint is nowhere to be found in the Public Question or the

Constitution, and the Court finds no basis to permit Plaintiff’s complaint to

survive on that ground.

Plaintiff’s complaint also suggests that the entire legislative assemblage is

invalid because “[t]he New Jersey Legislature in 2010 counted unauthorized

immigrants for the purposes of representation in its legislative redistricting

number of voters who ever read it.” 396 N.J. Super, at 426 (quoting Gormley, 88

N.J. at 44). The Chief Justice continued: “The field of battle is and should be the

place where ideas and arguments are commonly exchanged and countered—the

press, the other media, the public forum, the grocery store, the street comer, and

the home.” Ibid, (quoting Gormley, 88 N.J. at 44).

Binetti v. State of New Jersey, et al.

January 10, 2022

Page 22 of 29

scheme.” Id. at 143. Thus, the complaint alleges, the entire Legislature “operated

under a representation system that violated the State Constitution.” Id. at 54.

Again, Plaintiff’s complaint as to the constitution of the Legislature is

without legal support. While he asserts that “[t]he U.S. Constitution does not

allow counting of unauthorized immigrants for the purposes of representation,”

Article I, Section II of the Constitution leaves the details of the Census to

legislative determination: “in such Manner as [the Members of Congress] shall by

law direct.” The consequence of Plaintiff s argument would be to invalidate every

action of the State Legislature since 2010, at least, and the Court declines to find

that Plaintiff states any legal claim without something other than legal conjecture

that ignores or misstates the legal authorities upon which he relies. Accordingly,

the Court concludes that, substantively, all of Plaintiff s claims that rely upon his

theory of malrepresentation - which pervades his wide-ranging pleadings - fail to

state a legal claim upon which relief may be granted. See, e.g., Pl.’s Second Am.

Compl., at K 24, 48, 58-59, 123, 171.

The Court dismisses Count III of Plaintiff s second amended complaint with

prejudice. It is barred, as a matter of law, as stated above. Additionally, Plaintiff

has no basis to assert the rights of other “vulnerable mentally disabled people.” IcL

at If 219. His claims of a ‘two-tiered system of justice based on race” are without

Binetti v. State of New Jersey, et al.

January 10, 2022

Page 23 of 29

mooring in the language of the referenda or their affects. The Court dismisses

Count III with prejudice for failure to state a claim.

The Court dismisses Count IV of Plaintiff’s complaint because, while it

states that “Plaintiff is suing for compensatory damages due to his career being

damaged by this systematic discrimination due to his ethnicity,” id. at 226, the

complaint does not allege any actions by these Defendants in violation of the Law

against Discrimination. Plaintiff went to great pains in his opposition and his surreply to ground his claims not in employment discrimination, generally, but rather,

an accommodations claim. N.J.S.A. 10:5-4 provides:

All persons shall have the opportunity to obtain

employment, and to obtain all the accommodations,

advantages, facilities, and privileges of any place of public

accommodation,

publicly

assisted

housing

accommodation, and other real property without

discrimination because of race, creed, color, national

origin, ancestry, age, marital status, affectional or sexual

orientation, familial status, disability, liability for service

in the Armed Forces of the United States, nationality, sex,

gender identity or expression or source of lawful income

used for rental or mortgage payments, subject only to

conditions and limitations applicable alike to all persons.

This opportunity is recognized as and declared to be a civil

right.

[Ibid.]

To enforce that right, N.J.S.A. 10:5-12(f)(1) declares it to be unlawful

discrimination “for any owner, lessee, proprietor, manager, superintendent, agent,

Binetti v. State of New Jersey, et al.

January 10, 2022

Page 24 of 29

or employee of any place of public accommodation directly or indirectly to refuse,

withhold from or deny to any person any of the accommodations, advantages,

facilities or privileges thereof, or to discriminate against any person in the

furnishing thereoff.]”

“The LAD should be construed liberally,” and “[i]ts purpose is ‘nothing less

than the eradication of the cancer of discrimination.’” Ptaszynski v. Uwaneme,

371 N.J. Super. 333, 345 (App. Div. 2004) (quoting Dale v. Boy Scouts of Am.,

160 N.J. 562, 584 (1999), rev’d & remanded on other grounds, 530 U.S. 640

(2000)). N.J.S.A. 10:5-5(1) broadly defines “[a] place of public accommodation,”

but “[t]he listed places of public accommodation are merely illustrative of the

accommodations the Legislature intended to be within the scope of the statute,”

Ptaszynski, 371 N.J. Super, at 345 (quoting Fraser v. Robin Dee Day Camp, 44

N.J. 480, 486 (1965)), and “application of the LAD is not limited only to ‘places’

of public accommodation,” ibid, (quoting Dale, 160 N.J. at 588). In Holmes v.

Jersey City Police Department, the Appellate Division explained “[t]he prohibition

of discrimination in relation to public accommodation is functionally distinct from

the ban on employment discrimination.” 449 N.J. Super. 600, 603-04 (App. Div.

2017) (alteration in original) (quoting Thomas v. Cty. of Camden, 386 N.J. Super.

582, 590 (App. Div. 2006)). “[I]n the context of public accommodation

Binetti v. State of New Jersey, et al.

January 10, 2022

Page 25 of 29

discrimination, hostile comments that might not suffice to create a hostile

environment in a work context may nonetheless violate the LAD.” Id. at 604.

The Court has generously scoured his complaint for any suggestion of a

cause of action. None exists. These Defendants, in their official capacity, have

not discriminated against Plaintiff in any public accommodation, even under the

most expansive interpretation of the LAD. Because Plaintiff’s complaint does not

suggest a cause of action under the LAD for public accommodations

discrimination, the Court grants Defendants’ application, and with prejudice.

The Court dismisses Count V of Plaintiff’s complaint, which alleges that the

“State of New Jersey” has violated the federal RICO statute. His complaint alleges

no facts to support this claim. RICO prohibits an individual from (a) investing

income derived from racketeering activity into any enterprise; (b) using a pattern

of racketeering activity to acquire any interest or control of an enterprise; (c)

conducting the business or affairs of an enterprise through a pattern of racketeering

activity; (d) conspiring to violate sections (a), (b), or (c) of 18 U.S.C.A. 1962. 18

U.S.C.A. 1962 (a)-(d). Plaintiff pleads no facts to support his allegation that

Defendants engaged in prohibited activities amounting to a pattern of racketeering.

The State engaged in a lawful democratic process resulting in the legalization of

marijuana. The Court dismisses this count with prejudice.

Binetti v. State of New Jersey, et al.

January 10,2022

Page 26 of 29

Count VI alleges that the State of New Jersey has violated 42

U.S.C. 1981 and 42 U.S.C. 1983. As explained above, Plaintiffs § 1983 claim

fails as a matter of law because Defendants in their official capacity are not

“persons” under the law and therefore not susceptible to suit. To determine a

remedy under 42 U.SC.A. § 1981, a court looks to the express cause of action for

damages created by § 1983. McGovern v. City of Phila., 554 F.3d 114 (3d Cir.

2009). In Jett V. Dallas Independent School District, the Supreme Court

determined § 1981 does not provide a private right of action against state actions;

thus, § 1983 remains the vehicle for seeking remedy for alleged civil rights

violations against state actors. 491 U.S. 701, 705 (1989). After Jett, Congress

amended § 1981. Since that amendment “eight of the nine circuit courts of appeals

that have addressed the issue directly have concluded that Jett remains good law,

and that section 1983 provides the sole remedy for civil rights violations by state

actors.” Taite v. Bridgewater State Univ., 236 F. Supp. 3d 466, 479 (D. Mass.

2017). Specifically, the Third Circuit held “no implied private right of action

exists against state actors” under § 1981. McGovern, 554 F.3d at 122. Plaintiffs

§ 1981 claim fails as a matter of law because § 1981 does not contain a private

right of action against state actors.

Binetti v. State of New Jersey, et al.

January 10, 2022

Page 27 of 29

The Court dismisses Plaintiff’s tortious interference claim. Construing the

complaint most generously, the complaint fails to suggest a cause of action. The

elements of tortious interference with prospective economic advantage are:

One who intentionally and improperly interferes with

another's prospective contractual relation (except a

contract to marry) is subject to liability to the other for the

pecuniary harm resulting from loss of the benefits of the

relation, whether the interference consists of

(a) inducing or otherwise causing a third person not to

enter into or continue the prospective relation or

(b) preventing the other from acquiring or continuing

the prospective relation.

[Nostrame v. Santiago, 213 N.J. 109 (2013) (quoting

Restatement (Second) of Torts § 766B (1979)).]

See also Printing Mart, 116 N.J. at 751 -60 (explaining that to prevail on claim for

tortious interference with prospective economic advantage, plaintiff must show (1)

existence of reasonable expectation of economic advantage; (2) intentional and

malicious interference with that expectation; (3) causal connection between

interference and loss of prospective gain; and (4) damage).

Plaintiff’s complaint fails to suggest any claim for this cause of action. The

complaint does not allege anything other than fanciful speculation regarding any of

the elements. He fails to allege a reasonable expectation. He does not allege any

intentional or malicious interference. He does not and cannot allege any causal

Binetti v. State of New Jersey , et al.

January 10, 2022

Page 28 of 29

connection between the “interference” and his loss of any prospective gain. The

Court dismisses this count with prejudice.

The Court dismisses Count IX with prejudice. The complaint itself admits

that “the State has not directly retaliated against Plaintiff.” Second Am. Compl.,

at 1239. Nothing in the complaint provides any factual allegations to support his

claim of retaliation, generally, against other entities, and nothing in the complaint

suggests that these Defendants aided and abetted any such retaliation. This

dismissal is with prejudice.

Plaintiff dismissed Count X.

Thus, Plaintiffs’ constitutional and other challenges all fail as a matter of

law. Amendment will not improve his claims.4 Accordingly, the Court dismisses

the complaint with prejudice. Teamsters Local 97, 434 N.J. Super, at 413.

4 Given the disposition of Defendants’ motion to dismiss Plaintiffs complaint,

the Court denies Plaintiff’s renewed application for injunctive relief, as he fails to

establish by clear and convincing evidence irreparable harm, a reasonable

likelihood of success on the merits, or that equities predominate in his favor.

Binetti v. State of New Jersey, et al.

January 10, 2022

Page 29 of 29

No. A-1802-21

Superior Court of New Jersey, Appellate Division

Binetti v. State

Decided Aug 15. 2023

A-1802-21

08-15-2023

DR. CHRISTOPHER BINETTI, PHD, PlaintiffAppellant, v. STATE OF NEW JERSEY, PHILIP

D. MURPHY, GOVERNOR OF THE STATE OF

NEW JERSEY, and MATTHEW J. PLATKIN,

ATTORNEY GENERAL OF THE STATE OF

NEW JERSEY, in their capacity as agents of the

State defendants, including the LEGISLATURE,

THE OFFICE OF THE SECRETARY FOR

HIGHER

EDUCATION

AND

THE

DEPARTMENT OF STATE, DefendantsRespondents.

Ballon Stoll, PC, attorneys for appellant (Edward

M. Tobin and Moshe Warga, on the briefs).

Matthew J. Platkin, Attorney General, attorney for

respondents (Melissa H. Raksa, Assistant Attorney

General, of counsel; Jacqueline R. D'Alessandro,

Deputy Attorney General, on the brief).

PER CURIAM

This opinion shall not "constitute precedent or be

binding upon any court." Although it is posted on

the internet, this opinion is binding only on the

parties in the case and its use in other cases is

limited./?. 1:36-3.

Submitted May 23, 2023

On appeal from the Superior Court of New Jersey,

Chancery Division, Mercer County, Docket No.

C-000120-20. *2

Ballon Stoll, PC, attorneys for appellant (Edward

M. Tobin and Moshe Warga, on the briefs).

casetext

Part of Thomson Reuters

Matthew J. Platkin, Attorney General, attorney for

respondents (Melissa H. Raksa, Assistant Attorney

General, of counsel; Jacqueline R. D'Alessandro,

Deputy Attorney General, on the brief).

Before Judges Susswein and Berdote Byrne.

PER CURIAM

Plaintiff Christopher Binetti, Ph.D. appeals from a

January 10, 2022 Chancery Division order

dismissing his second amended complaint with

prejudice. He filed suit against the State of New

Jersey, the Governor of New Jersey, the Attorney

General of New Jersey, the State Legislature, the

Office of the Secretary for Higher Education, and

the New Jersey Department of State. In his

complaint,

plaintiff

challenged

the

constitutionality of two 2020 public ballot

questions concerning the legalization of marijuana

and delaying the State's voting redistricting

process. He also alleged the State is discriminating

against Italian Americans, claiming he has been

and continues to be discriminated against in his

pursuit of a career in academia.

Assignment Judge Robert Lougy issued a

comprehensive and thoughtful twenty-seven-page

written opinion ruling plaintiff does not have

standing to bring these claims and has failed to

demonstrate a cognizable harm. After *3 carefully

reviewing the record in light of the governing

principles of law, we affirm.

I.

We need only briefly summarize the pertinent

facts and procedural history. Prior to the 2020

general election, the State Legislature voted to

No. A-1802-21 (App. Div. Aug. 15, 2023)

Binetti v. State

present various referenda on the ballot-one

regarding the legalization of regulated cannabis

(Public Question No. 1 ') and another delaying the

State's voting redistricting process (Public

Question No. 312]). A.C.R. 840/S.C.R. 183 (2019);

A.C.R. 188/S.C.R. 123 (2019). On November 3,

2020, voters approved both referenda challenged

by plaintiff.3 After the referenda passed, the New

4

Jersey *4 Constitution was amended, and the

Legislature passed various enabling statutes,

which the Governor signed into law.

1 Public Question No. 1 asked: "Do you

On December 14, 2020, plaintiff filed a pro se

verified complaint and order to show cause

seeking preliminary injunctive relief pursuant to

Rule 4:52-l(a). Plaintiff sought to block the

constitutional amendment concerning marijuana

legalization from taking effect. He contended that

the referendum, the resulting constitutional

amendment, and the related enabling legislation

violated the state and federal constitutions, as well

as the New Jersey Civil Rights Act (NJCRA),

N.J.S.A. 10:6-1 to -2. He further asserted that the

Legislature was unconstitutionally composed

because the 2010 redistricting scheme included

approve amending the Constitution to

"unauthorized immigrants" for the purposes of

legalize a controlled form of marijuana

representation.

called ’cannabis'?" Div. of Elections, Dep't

https://www.state.nj.us/state/elections/asset

Defendants moved to dismiss plaintiffs initial

complaint on December 28, 2020. On December

s/pdf/election-results/2020/2020-public-

29, 2020, the trial court denied plaintiffs request

question-01 -english.pdf.

for injunctive relief.

of

PublicQuestionNo. 1,

State,

I2] Public Question No. 3 asked: "Do you

On January 15, 2021, plaintiff filed his first

approve amending the Constitution to

amended complaint, claiming that both the

cannabis and redistricting referenda violated

Article I of the State *5 Constitution; the two

resulting constitutional amendments violated

Article IX of the State Constitution and the

NJCRA; and the systemic ethnic discrimination

against Italian Americans other Mediterranean

Americans violated the New Jersey Law Against

change when new legislative districts are

created

if the federal census data is

delayed?" Div. of Elections, Dep't of State,

Public

Question

3,

No.

https://www.state.nj.us/state/elections/asset

s/pdf/election-results/2020/2020-public-

question-03-english.pdf.

3 See Div. of Elections, Dep't of State,

Official List: Public Question Results for

11/03/2020

General

Question No.

I

1

Election

Public

(Oct.

2021),

14,

https://nj.gov/state/electioris/assets/pdf/elec

tion-results/2020/2020-official-general-

results-public-question-l.pdf;

Div.

of

Elections, Dep't of State, Official List:

Public Question Results for 11/03/2020

General Election Public Question No. 3 I

(Oct.

14,

2021),

https://nj.gov/state/elections/assets/pdf/elec

tion-results/2020/2020-official-general-

results-public-question-1 .pdf.

Discrimination (NJLAD), N.J.S.A. 10:5-1 to -50.

Plaintiff alleged he was the subject of employment

discrimination based on his Italian American

ethnicity.

On February 25, 2021, defendants moved to

dismiss the first amended complaint. Plaintiff

sought and was granted leave to amend his

complaint a second time on May 19, 2021.

Plaintiff filed his second amended complaint- the

subject of this appeal-on May 25, 2021.

In his second amended complaint, plaintiff

reasserted his claims that the two constitutional

amendments resulting from the referenda violated

Articles I and IX of the State Constitution and the

NJCRA and that defendants unlawfully engaged

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2

Binetti v. State

No. A-1802-21 (App. Div. Aug. 15, 2023)

POINT 1

in systemic ethnic discrimination against Italian

Americans.

Plaintiff additionally

claimed

defendants: engaged in a criminal conspiracy to

sell cannabis in contravention of federal law,

APPELLANT HAS STATED VIABLE

CAUSES OF ACTION AND HAS

STANDING TO PURSUE THE CLAIMS

thereby violating the Racketeer Influenced and

ASSERTED IN THIS ACTION.

Corrupt Organizations Act (RICO), 18 U.S.C. §§

1961-1968;4 *6 violated 42 U.S.C. § 1981 and 42

POINT II

U.S.C. § 1983 by "treating Italians differently than

SOVEREIGN IMMUNITY DOES NOT

BAR THE CLAIMS ASSERTED BY

other minorities"; deprived Italian Americans and

other Mediterranean Americans equal protection

of the law, violating the Fourteenth Amendment to

APPELLANT IN THIS ACTION.

POINT III

the U.S. Constitution, Section 1983, and the

NJCRA; committed a tort by interfering with

APPELLANT SHOULD HAVE BEEN

AFFORDED THE OPPORTUNITY TO

FURTHER AMEND HIS COMPLAINT

AS A RESULT OF HIS PRO SE STATUS.

plaintiffs rights to employment and public

accommodations; aided and abetted the retaliation

against plaintiff by public universities and

colleges, thereby violating the NJLAD; and

illegally created a protected class of recreational

marijuana users, thereby violating the State

Constitution's guarantee of equal protection under

the laws.

II.

In its comprehensive written opinion, the trial

court

concisely

but

thoroughly

recounted

plaintiffs arguments, explaining:

4 RICO provides for a civil cause of action

Regarding the referenda, [p]laintiff alleges

for acts performed as part of an ongoing

[defendants violated Articles I and IX of

the New Jersey Constitution, the [N]CRA],

N.J.S.A. 10:6-2(c), and the federal RICO

statute. First, [p]laintiff argues the

referenda were improperly put on the

criminal organization.

On July 2, 2021, defendants moved to dismiss

plaintiffs second amended complaint with

prejudice for lack of standing and failure to state a

claim. In response, plaintiff filed an opposition

brief in which he "voluntarily dismissefd] with

prejudice" his claim concerning the alleged

"protected class" of recreational marijuana users.

By leave of the court, he also filed a sur-reply in

which he alleged for the first time to have suffered

harm by being forced to "retreat while in a public

place" due to an unknown individual allegedly

smoking marijuana at the train station. *7

The trial court heard oral argument on defendants'

motion on December 7, 2021. On January 10,

2022, the court issued an order dismissing

plaintiffs second amended complaint in its

entirety with prejudice.

Plaintiff raises the following contentions for our

consideration:

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ballot in

*8

Binetti v. State

No. A-1802-21 (App. Div. Aug. 15, 2023)

violation of Articles I and IX of the New

Jersey Constitution as well as the

[N]CRA], so the resulting laws are also

unconstitutional. In support of this theory,

[p]laintiff explains [s] enators who

advanced the referenda to the ballot were

unauthorized to vote for it because the

State improperly included unauthorized

immigrants in the 2010 redistricting

process that led to the [senators' election

to office. Second, [p]laintiff alleges both

referenda discriminate against Italian

Americans in violation of the [N]CRA],

the [N]LAD], and the state and federal

Equal Protection Clauses because that

group was "disproportionately opposed to

the legalization of marijuana," "will not be

allowed to participate in dispensaries

proportionate to their size of the [New

Jersey] population," and continued

inclusion of unauthorized immigrants in

voting

districts

and

postponing

redistricting

disproportionately

disadvantages Italian Americans. Plaintiff

also claims the [Legislature committed

fraud, violated Article IX, and violated the

[N]CRA] because the statute passed to

enable Public Question No. 1 is

inconsistent with the language in the

[p]ublic

[q]uestion

itself.

Finally,

[p]laintiff alleges he was considered "a

major candidate" for a position in the voter

redistricting commission but that the

postponement of the redistricting process

as authorized by Public Question No. 3

deprived him of that opportunity.

Plaintiff separately alleges [defendants

violated the [N]LAD], the [N]CRA], the

Equal Protection Clauses of both the U.S.

and New Jersey Constitutions, and federal

statutes § 1981 and § 1983 and committed

common

law tortious

interference

because[d]efendants discriminated against

[p]laintiff based on his Italian American

and Mediterranean American ethnicity.

Plaintiff contends the State has

discriminated against Italian Americans

and Mediterranean Americans in higher

education because the State "categorically

*9

denied" Italian American students,

employees, and applicants affirmative

action, the groups are underrepresented in

public higher education, and the State

excludes the groups in calculating its own

demographic statistics. Plaintiff claims to

have evidence of a public employee stating

the employee "believed that it was the job

of policy makers to reduce Italian

Americans' political representation" but

[p]laintiff failed to include such evidence.

Plaintiff also alleges that executives at

Rutgers-Newark

and

Rutgers-New

Brunswick stated to him that Italian

Americans will never gain equal civil

rights or respect without State action.

Plaintiff claims he was denied employment

as an adjunct professor, despite his

qualifications, due to his Italian American

ethnicity.

[(Internal citations omitted)

alteration in original).]

(twelfth

The court concluded that plaintiff lacked standing

"to bring his numerous and wide-ranging claims"

because he could not demonstrate any harm and

failed to state any claim upon which relief could

be granted. It "generously scoured [plaintiff’s]

complaint for any suggestion of a cause of action,"

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4

Binetti v. State

No. A-1802-21 (App. Div. Aug. 15, 2023)

but concluded that "[n]one exists." The court also

determined that further amendment to plaintiffs

complaint would be futile.

We affirm substantially for the reasons set forth in

the trial court's twentyseven-page opinion. We add

the following comments.

We apply a de novo standard of review to a trial

court order dismissing a complaint under Rule 4:62(e). Baskin v. PC. Richard &Son, LLC, 246 N.J.

10

157, 171 (2021) :>io (citing Dimitrakopoulos v.

Borrus, Goldin, Foley, Vignuolo, Hyman &Stahl,

PC, 237 N.J. 91, 108 (2019)). We owe no

deference to the trial court's conclusions. Rezem

Fam. Assocs., LP v. Borough of Millstone, 423

N.J.Super. 103, 114 (App. Div. 2011).

In considering a Rule 4:6-2(e) motion for failure to

state a claim, "[a] reviewing court must examine

'the legal sufficiency of the facts alleged on the

face of the complaint,' giving the plaintiff the

benefit of 'every reasonable inference of fact.'"

Baskin, 246 N.J. at 171 (quoting Dimitrakopoulos,

237 N.J. at 107). We assume the allegations of the

complaint are true, viewing the pleading

generously "to determine whether a cause of

action can be gleaned even from an obscure

statement." Seidenberg v. Summit Bank, 348

N.J.Super. 243, 250 (App. Div. 2002) (citing

Printing Mart-Morristown v. Sharp Elecs. Corp.,

116 N.J. 739, 746 (1989)). The test for

determining the adequacy of a pleading is

"whether a cause of action is 'suggested' by the

facts." Printing MartMorristown, 116 N.J. at 746

(quoting Velantzas v. Colgate-Palmolive Co., 109

N.J. 189, 192 (1988)).

"A pleading should be dismissed if it states no

basis for relief and discovery would not provide

one." Rezem Fam. Assocs., 423 N.J.Super. at 113.

11

"Dismissals under Rule 4:6-2(e) are ordinarily

without prejudice." *11 Mac Prop. Grp. LLC

&The Cake Boutique LLC v. Selective Fire &Cas.

Ins. Co., 473 N.J.Super. 1, 17 (App. Div. 2022).

"Yet, a dismissal with prejudice is 'mandated

where the factual allegations are palpably

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insufficient to support a claim upon which relief

can be granted,' or if 'discovery will not give rise

to such a claim.'" Ibid, (first quoting Rieder v.

Dep't of Transp., 221 N.J.Super. 547, 552 (App.

Div. 1987); and then quoting Dimitrakopoulos,

237 N.J. at 107).

Plaintiff argues that he sufficiently pleaded claims

of discrimination before the trial court and that the

court erred in dismissing them with prejudice. But

none of his allegations were pleaded with

sufficient specificity. Even on appeal, plaintiff

offers no support for his claims of "widespread

discrimination against Italian Americans by the

State."

Plaintiff

alleges

that

"systemic"

ethnic

discrimination against Italian Americans violates

the public accommodation and employment

portions of the NJLAD and that his career has

been "damaged by this systemic discrimination."

His complaint, however, does not allege any

specific actions by these defendants in violation of

the NJLAD in either the employment or public

accommodation contexts. Even affording plaintiff

a "generous and hospitable approach," Printing

Mart, 116 N.J. at 746, he fails to provide details

concerning positions for which he applied, when

12 he applied, and what the outcome of any such * 12

application might have been. Moreover, he asserts

no claims against any specific employer and does

not allege that any State defendant was an actual

or potential employer. In sum, plaintiff fails to

make any showing of unlawful discrimination

under the NJLAD by any of the defendants.

Plaintiff summarily alleged that the State has

violated Sections 1981 and 1983 "by treating

Italians differently than other minorities." The trial

court determined that plaintiff could not seek

relief under Sections 1981 and 1983 as a matter of

law. On appeal, plaintiff argues that his claims are

not barred by sovereign immunity but does not

otherwise address the limitations imposed under

the pertinent federal statutes.

Binetti v. State

No. A-1802-21 (App. Div. Aug. 1o, 2023)

Plaintiffs Section 1981 claim fails as a matter of

law because Section 1981 does not contain a

private right of action against state governmental

legal or total population." Plaintiff attributes this

to Arab Americans, Italian Americans, and other

Mediterranean Americans not being included in

units. McGovern v. City of Phila., 554 F.3d 114,

121 (3d. Cir. 2009). Therefore, plaintiffs claim

under Section 1981 is not and never will be viable.

"affirmative action, Diversity, Equity, and

Inclusion, and proper representation" mandates

while "white Latinos are treated as minorities." He

14 *14 alleges that Rutgers, a public state university,

Plaintiffs Section 1983 claim also fails as a matter

of law. Section 1983 provides a private right of

action against:

Every person who, under the color of any

statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes

to be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws.

13

*13

[42 U.S.C. § 1983.]

"showed its utter contempt for Italian Americans

being represented in academia" and that this

"behavior was spurred by the State's policies of

marginalization, deprivation, and systemic ethnic

discrimination."

As we have already noted, plaintiff cannot state a

claim upon which relief can be granted under

Section 1983 because the State and state officials

acting in their official capacity are not "persons"

liable under the act. See Will, 49 U.S. at 71.

Moreover, civil claims for a violation of the New

Jersey Constitution may only be asserted by way

of the NJCRA, which is interpreted analogously to

For purposes of Section 1983, the United States

Supreme Court has explained, ”[o]bviously, state

officials literally are persons. But a suit against a

Section 1983. Brown v. State, 230 N.J. 84, 97-98

(2017); Martin v. Unknown U.S. Marshals, 965

F.Supp.2d 502, 548 (D.N.J. 2013). In Brown, our

Supreme Court confirmed that the State and its

state official in his or her official capacity is not a

suit against the official but rather is a suit against

officials acting in their official capacities are

entitled to qualified immunity against NJCRA

the official's office. As such, it is no different from

a suit against the State itself." Will v. Mich. Dep't

of State Police, 491 U.S. 58, 71 (1989) (citing

Brandon v. Holt, 469 U.S. 464, 471 (1985)). Here,

plaintiff sued the State, the Governor and the

Attorney General-in their official capacities- as

well as the State Legislature, the Office of the

Secretary for Higher Education, and the

Department of State. Because defendants are not

"persons" under the law, and therefore not

susceptible to suit, plaintiffs claims against them

claims. 230 N.J. at 98. Accordingly, because the

defendants are immune from suit under the

NJCRA, plaintiffs claims against them are not and

are not and never will be viable under Section

15 Plaintiff asserts * 15 he "has reason to believe that

1983.

Plaintiff also alleges violations of the Fourteenth

Amendment's Equal Protection Clause, Section

1983, and the NJCRA by "creating] a system in

which Mediterranean academics are represented at

a much lower level than their percentage of the

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never will be viable.

Lastly, plaintiff alleges defendants "aided and

abetted the retaliation" against him by public

universities and colleges in violation of the

NJLAD. Plaintiff claims that "[p]ublic schools

will not hire [him] in part or solely because of his

ethnicity, coupled with his suit against the State."

the lack of interviews for jobs and other troubles

with public universities and colleges are directly

linked to the State and the other defendants' failure

to instruct these entities not to retaliate against

[p]laintiff" He further contends that the State's has

6

Binetti v. State

No. A-1802-21 (App. Div. Aug. 15. 2023)

a duty "to ensure that its entities and affiliates,

such as public universities and colleges, do not

retaliate against [him], "

To establish a cause of action for retaliation under

the NJLAD, plaintiff must demonstrate: (1) he

"engaged in a protected activity known by the

employer"; (2) "thereafter [the] employer

unlawfully retaliated against [him]"; and (3) his

"participation in the protected activity caused the

1

retaliation." Henry v. N.J. Dep't of Hum. Servs.,

204 N.J. 320, 332 (2010) (first alteration in

original) (quoting Tartaglia v. UBS PaineWebber,

Inc., 197 N.J. 81, 125 (2008)). Plaintiff does not

make any such showing in his second amended

complaint. He failed to plead any specific adverse

employment decision by any specific employer.

Indeed, the complaint itself acknowledges that

"the State has not directly retaliated against

[p]laintiff." As the trial court found, "[n]othing in

the complaint provides any factual allegations to

16 support his claim of retaliation, *16 generally,

against other entities, and nothing in the complaint

suggests that these [defendants aided and abetted

any such retaliation."

We also agree with the trial court's conclusions

with respect to standing. "The concept of standing

in a legal proceeding refers to a litigant's 'ability or

entitlement to maintain an action before the

court.'" N.J. Dep't of Envtl. Prot. v. Exxon Mobil

Corp., 453 N.J.Super. 272, 291 (App. Div. 2018)

(quoting People for Open Gov't v. Roberts, 397

N.J.Super. 502, 508-09 (App. Div. 2008)). As a

threshold determination, "[a] lack of standing . . .

precludes a court from entertaining any of the

substantive issues" raised by a litigant. Ibid.

(omission in original) (quoting Enviro Finance

Grp. v. Envtl. Barrier Co., 440 N.J.Super. 325,

339 (2015)).

"A litigant has standing only if the litigant

demonstrates 'a sufficient stake and real

adverseness with respect to the subject matter of

the litigation [and a] substantial likelihood of

some harm ... in the event of an unfavorable

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decision.'" Edison Bd. of Educ. v. Zoning Bd. of

Adjustment of Edison, 464 N.J.Super. 298, 306

(App. Div. 2020) (alteration and omission in

original) (quoting Jen Elec., Inc. v. Cty. of Essex,

197 N.J. 627, 645 (2009)). As we have previously

explained:

The "essential purpose" of the standing

doctrine in New Jersey is to "assure that

the invocation and exercise of

*17

judicial power in a given case are

appropriate. Further, the relationship of

plaintiffs to the subject matter of the

litigation and to other parties must be such

to generate confidence in the ability of the

judicial process to get the truth of the

mater and in the integrity and soundness of

the final adjudication."

\Triffin v. Somerset Valley Bank, 343

N.J.Super. 73, 80 (App. Div. 2001)

(quoting N.J. State Chamber of Com. v.

N.J. Election L. Enft Comm'n, 82 N.J. 57,

69 (1980)).]

New Jersey has embraced a much more liberal

standing doctrine than the one applied under

federal case law. People for Open Gov't, 397

N.J.Super, at 509 (quoting Crescent Park Tenants

Ass'n v. Realty Equities Corp., 58 N.J. 98, 101

(1971)). "Standing has been broadly construed in

New Jersey as 'our courts have considered the

threshold for standing to be fairly low.’" Triffin,

343 N.J.Super, at 81 (quoting Reaves v. Egg

Harbor Twp., 277 N.J.Super. 360, 366 (Ch. Div.

1994)). Thus, where "the proceeding serves the

public interest" and the "plaintiff is not simply an

interloper," standing will likely be found. N.J.

Citizen Action v. Riviera Motel Corp., 296

N.J.Super. 402, 415 (App. Div. 1997) (quoting In

re Quinlan, 70 N.J. 10, 34-35 (1976)).

Additionally, courts "will not render advisory

opinions or function in the abstract." Crescent

IS Park Tenants, 58 N.J. 98, 107 (1971). *is

Binetti v. State

No. A-1802-21 (App. Div. Aug. 15, 2023)

Here, plaintiff contends the State's actions caused

him to lose employment opportunities without

alleging any facts to support his claim of

widespread

discrimination

against

Italian

Americans by the State. As the trial court found,

plaintiff does not provide concrete statements to

indicate "adverseness with respect to the subject

matterf] and a substantial likelihood that the party

will suffer harm in the event of an unfavorable

decision." In re Camden Cty., 170 N.J. 439, 449

(2002).

As the trial court correctly determined, plaintiff’s

1981, 1983 and NJCRA claims fail as a matter of

law. Amendments will not improve those claims.

The same is true with respect to plaintiff’s NJLAD

claims of discrimination and retaliation.

To the extent we have not specifically addressed

them, any remaining arguments raised by plaintiff

lack sufficient merit to warrant discussion. R.

2:11-3(e)(1)(E).

Affirmed.

Finally, plaintiff argues that the trial court should

not have dismissed his discrimination claims with

prejudice in light of his self-represented status. He

argues the judge instead should have allowed him

to further amend his complaint. Ordinarily, a

dismissal for failure to state a claim is without

prejudice, and the court has the discretion to

permit a plaintiff to amend the complaint to allege

additional facts to state a cause Of action. Hoffman

v. Hampshire Labs, Inc., 405 N.J.Super. 105, 116

(App. Div. 2010). Trial courts should not dismiss

complaints if the facts suggest a potential cause of

action that may be better articulated by an

amendment of the complaint. Printing MartMornstown, 116 N.J. at 746. However, "the

existence of the fundament of a cause of action . ..

is pivotal." Teamsters Loc. 97 v. State, 434

N.J.Super. 393, 412-13 (App. Div. 2014) (quoting

s 19 Banco Popular N. Am. v. Gandi, *19 184 N.J. 161,

183 (2005)). Accordingly, "our courts have not

hesitated to dismiss complaints with prejudice

when a constitutional challenge fails to state a

claim." Id. at 413.

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8

FILED, Clerk of the Supreme Court, 14 Feb 2025, 088649

SUPREME COURT OF NEW JERSEY

C-293 September Term 2024

088649

Dr. Christopher Binetti, Ph.D.,

Plaintiff-Petitioner,

v.

State of New Jersey, Philip D.

Murphy, Governor of the

State of New Jersey, and

Matthew J. Platkin, Attorney

General of the State of

New Jersey, in their capacity as

agents of the State defendants,

including the Legislature, the

Office of the Secretary

for Higher Education and

the Department of State,

Defendants-Respondents .

ORDER

A petition for certification of the judgment in A-001802-21

having been submitted to this Court, and the Court having considered the

same;

It is ORDERED that the petition for certification is denied.

WITNESS, the Honorable Stuart Rabner, Chief Justice, at Trenton, this

11th day of February, 2025.

RK OF THE SUPREME COURT