Opposition Brief — Magee v. Ruvoldt

Supreme Court, U.S.

eee ee

») FEB 18 88

mniitidinee JOSEPH F. SPANIOL, JR.

“CLERK

In The

Supreme Court of the United States

October Term, 1985

t

Vv

JOHN S. MAGEE, INDIVIDUALLY and

T/A COLLEGIATE RESEARCH SYSTEMS,

Petitioner,

V.

HAROLD J. RUVOLDT, PROSECUTOR

OF HUDSON COUNTY,

Respondent.

ty

Vv

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

ray

Vv

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI TO THE SUPREME COURT

OF NEW JERSEY

gH

Vv

W. CARY EDWARDS

ATTORNEY GENERAL

OF NEW JERSEY

Attorney for Respondent,

State of New Jersey

Richard J. Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

(609) 292-8569

JAMES J. CIANCIA

Assistant Attorney General

Of Counsel

MARK FLEMING

Deputy Attorney General

On the Brief

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE CASE |. 1

ARGUMENT:

CERTIORARI SHOULD NOT BE GRANTED

TO REVIEW A STATE COURT DECISION

WHICH DOES NOT CONFLICT WITH AP-

PLICABLE DECISIONS OF THE SUPREME

COURT AND WHERE THERE ARE NO SPE-

CIAL AND IMPORTANT REASONS FOR

eae tee Tee AOE oe 6

ET ont ea eesnsct ice hdtainjeaenninndenoncnmatei 12

TABLE OF AUTHORITIES

CASEs:

California v. LaRue, 409 U.S. 109, 93 S.Ct. 390,

om L.24. 38 Me (1972) seeaiietaeatck 8

Capitol Monies, Inc. v. City of Passaic, 194 N.J.

fuer. ee tA. oO. ES) TE TT +

Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13

a I cae 8

Erznoznik v. City of Jacksonville, 422 U.S. 205,

95 S.Ct. 2268, 45 L.Ed. 20 125 (1975) ccc escssesseeeeeeen 4

Giboney v. Empire Storage & Ice Co., 336 U.S.

490, 69 S.Ct. 684, 93 L.Ed. 834 (1949) 0... 8

Tn re Hamds, 90 NJ. GOS (1982) nnn cccccececssessonssssssscessesernceneernsseseeennee +

Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41

L.4.2e Ge (4) ................ IST eat aerate me |

People v. Magee, 423 N.Y.S.2d 417 (Supreme

emetic enn cui Crea cee Ea rete NUANCE Cac 2

Sterte v. Tree, 96 Nd. USG (19K) nana neinnneniccnncicenennenm ene 4

State ». Miter, 83 NW. 42 (1080) —.. 4

TABLE OF AUTHORITIES—Continued

Page

Town Tobacconist v. Kimmelman, 94 N.J. 85 (1983 a)

United States v. O’Brien, 391 U.S. 367, 88 S.Ct.

1673. 00 L.Ed. 3a G73 (119588) es

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71

L.Ed.2d 362 (1982) ..... n ; gmk

New JERSEY STATUTES:

N.J.S.A. 24 :170-77.16 S passim

N.J.S.A. 2A :170-77.17 = . 5, 7,10

RvLEs:

N.J. Court Rule 2 :5-h(1) rsa oe ae eee: + an

Supreme Court Rule 17 6

OruerR AUTHORITY:

Ambash, ‘‘Trapping Term Paper Cheaters by

Statute’’, 59 A.B.A.J. 162 (Feb. 1973) 20000... 5, 11

No. 85 - 1193

ray

Vv

In The

Supreme Court of the United States

October Term, 1985

fy.

Vv

JOHN S. MAGEE, INDIVIDUALLY and

T/A COLLEGIATE RESEARCH SYSTEMS,

Petitioner,

Vv.

HAROLD J. RUVOLDT, PROSECUTOR

OF HUDSON COUNTY,

Respondent.

ray

Vv

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

fay

Vv

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI TO THE SUPREME COURT

OF NEW JERSEY

ray

COUNTERSTATEMENT OF THE CASE

The present petition for a writ of certiorari filed by

John S. Magee and Collegiate Research Systems seeks re-

view of an order of the New Jersey Supreme Court de-

clining to review an appeilate court decision upholding the

constitutionality of N.J.S.A. 2A :170-77.16 and rejecting the

claims of selective enforcement of the statute. In so doing,

the appellate court upheld the trial court’s rejection of

Magee’s constitutional claims. The facts leading to this

petition may be briefly summarized.

Magee operates a business in Hoboken, New Jersey

known as Collegiate Research Svstems which prepares and

|

sells research papers on diverse academic subjects (Pal2).*

Prior to this time, Magee had been operating Collegiate

Research Systems in New York. People v. Magee, 423

N.Y.S.2d 417 (Supreme Court 1979). On March 24, 1983

Investigator Donald Wiggins of the Hudson County Prose-

eutor’s Office visited Magee’s business wearing a hidden

recording device. Wiggins presented himself as a student

and ordered a fifteen page paper on nuclear arms control.

In response to Magee’s questions, Wiggins stated that the

paper was for an undergraduate political science course

and was due at the end of the semester. Wiggins completed

an order form which asked for the subject matter of the

paper, the number of pages the paper was to be, whether

the paper was to be at the undergraduate or graduate level

and whether a bibliography and footnotes were required.

Wiggins received a double spaced typed paper entitled

‘*The Historic Background of the Arms Race,’’ which con-

tained footnotes and a bibliography. The cover page did

not list an author’s name or contain any other identifying

information. Wiggins paid Magee $225 for the paper (Pal2

to Pal3).

On March 29, 1983 Investigator Anthony Scott of the

Hudson County Prosecutor’s Office visited Magee’s busi-

ness wearing a hidden recording mechanism. Scott pur-

chased two papers on capital punishment. When Scott

asked whether he could just hand the papers in without

any problems, Magee replied ‘‘I don’t care anything what

you’re going with it... [I’m just selling them.’’ Scott

paid Magee $70 for the two papers (Pal3).

* This notation refers to the appendix to the Petition for a Writ

of Certiorari filed by Magee in this matter.

On April 13, 1983 the Hudson County Prosecutor filed

a verified complaint charging Magee with continued viola-

tion of N.J.S.A. 2A :170-77.16 by preparing and selling term

papers to students knowing, or under circumstances having

reason to know, that the papers were to be submitted by

high school or college students in fulfillment of their aca-

demic requirements. Following a hearing held on May 4,

1983, a preliminary injunction was issued restraining Magee

from engaging in conduct prohibited by N.J.S.A. 2A :170-

77.16 (PaS to Pal0).

On December 7, 1983, Investigator Terrence Hull of

the Hudson County Prosecutor’s Office visited Magee’s

business wearing a hidden recording device. Hull ordered

a paper on Cocaine. He was assured by Magee that the

paper was original and that if another student selected

the same topic a different writer would be assigned. Hull

paid Magee $105.00 for the paper (Pal5).

On January 9, 1984 an order to show cause why Magee

should not be held in contempt was issued. Magee was

found guilty of contempt, sentenced to five days in the

eounty jail and fined $500.00 (Pal to Pa3).

After a nonjury tria! on the underlying action, on Feb-

ruary 23, 1984 Magee was found guilty of two violations

of N.J.S.A. 2A :170-77.16, fined $1.000 for each violation and

was permanently enjoined from future violations of the Act

(Pa4 to Pa7).

Magee appealed both the contempt citation and the

N.J.S.A, 24 :170-77.16 convictions. Because Magee chal-

lenged the constitutionality of a New Jersey statute, the

Attorney General was contacted by the Clerk of the Ap-

pellate Division to ascertain whether the Attorney General

would defend the validity of V.J.S.A. 2A:170-77.16 on ap-

peal. Pursuant to NV.J. Court Rule 2:5-h(1), the Attorney

General filed a brief in support of the constitutionality of

N.J.S.A. 2A :170-77.16.

In an opinion dated August 5, 1985, the Appellate Di-

vision rejected all of Magee’s arguments including his

claim that N.J.S.A. 2A:170-77.16 is unconstitutionally

vague and overbroad (Pa8 to Pa26). The Appellate Di-

vision observed that V./.S.d, 2A :170-77.16 regulates com-

municative conduct rather than pure speech and explained

that a three-pronged test is to be applied to determine if

such regulation is constitutionally permissible (Pal6 to

Pal7).

If the regulated communicative activity is constitu-

tionally protected to some degree, the issue becomes

whether the regulation is so overbroad in proscribing

the constitutionally protected activity, that it reaches

farther than is permitted or necessary to fulfill the

State’s interest. See State v. Lee, 96 N.J. 156, 165

(1984): Town Tobacconist v. Kimmelman, 94 N./.

85, 125 n.21 (1983); Jn re Hinds, 90 N.J. 604, 617-618

(1982). A regulation which restricts time, place or

manner of protected free speech will survive constitu-

tional scrutiny only if it: (1) may be justified with-

out reference to the content of the regulated speech;

(2) it serves a significant governmental interest by

the least restrictive possible means; and (3) it pro-

vides for an open ample alternative means for the

communication of the information. Hrznoznik v. City

of Jacksonville, 422 U.S, 205, 95 S.Ct. 2268, 45 L.A'd.2d

125 (1975); State v. Miller, 83 N.J. 402, 412 (1980) ;

Capitol Movies, Inc. v. City of Passaic, 194 N.S. Super.

298, 303 (App. Div. 1984).

Applying that three-prong test here, we are per-

suaded that V.J.S.A. 2A :170-77.16 is not facially over-

broad. The statute prohibits the sale or offer for sale

of academic assignments, regardless of content or sub-

ject matter, oniy when the distributor knows or has

reason to know that the assignment is intended for

submission under the student’s name for academic

credit. Second, it clearly advances a compelling gov-

ernmental interest: combatting blatant, commercial.

ized assistance in cheating that subverts the integrity

of the educational system. See Ambash, ‘‘'Trapping

Term Paper Cheaters by Statute”, 59 A.B.A./. 162,

165 (1973). Finally, N./.S.4d. 2A :170-77.17 provides

an adequate means of disseminating research material

or other academic information which is not intended

for submission under the student’s name to an’ eduea-

tional institution. We therefore reject defendant’s

“overbroad’’ constitutional challenge. [Pal7_ to

Pal9].

The Appellate Division also rejected Magee’s claim

that the statutory language, ‘‘or under circumstances hav-

ing reason to know,’’ is vague because Magee was found

to have actual knowledge beyond a reasonable doubt of

the purchaser’s intent to submit the term paper under

their names to their educational institutions (Pal9 to

Pa21). Finally, the Appellate Division rejected Magee’s

selective enforcement and entrapment claims, his chal-

lenge to the preliminary injunction, and his other argu-

ments (Pa22 to Pa26).

On August 26, 1985, Magee filed a Notice of Petition

for certification with the Supreme Court of New Jersey.

By order dated October 15, 1985, the Supreme Court of

New Jersey denied the Petition for Certification (Pa27

to Pa2s).

On January 19, 1986, Magee filed the present petition

for a writ of certiorari to the Supreme Court of New Jer-

sey.

co)

ARGUMENT

CERTIORARI SHOULD NOT BE GRANTED

TO REVIEW A STATE COURT DECISION

WHICH DOES NOT CONFLICT WITH APPLI-

CABLE DECISIONS OF THE SUPREME COURT

AND WHERE THERE ARE NO SPECIAL AND

IMPORTANT REASONS FOR GRANTING THE

WRIT.

It is a fundamental concept that review by the United

States Supreme Court on Writ of Certiorari ‘tis not a

matter of right, but of judicial discretion... .°’ Supreme

Court Rule 17. Given such discretion, it has been the

long-standing practice of the Supreme Court to grant the

writ ‘‘only when there are special and important reasons

therefor.’’ /bid. Further, the Court will generaly grant

certiorari from a state court determination only where

the state court has decided a federal question of first im

pression or in a way in conflict with applicable decisions

of the Supreme Court or other courts. J/d., Rule 17(1) (b

and c). None of these reasons exist in the present ease,

and the petition should therefore be denied.

This case involves a challenge by Magee to the con

stiutionality of N./.S.A. 2A:170-77.16 which attempts to

eradicate commercialized cheating by prohibiting, in/e)

alia, the sale and offer for sale of assignments which the

seller knows or has reason to know will be submitted in

whole or substantial part under a student’s name in ful

fillment of academic requirements. Magee also attacks

the contempt proceeding and alleges improper prosecu-

torial conduct. The State is participating in this matter

only to defend the constitutionality of N.J.S.A, 2A :170-

77.16.

~

Magee argues that V./.S.A. 2A :170-77.16 is overbroad

and vague. The statute provides:

No person shall, for any fee, or other remunera-

tion, prepare, offer to prepare, cause to be prepared,

sell or offer for sale any term paper, thesis, disser

tation, essay, report or other written, reeerded, pic

torial, artistic or other assignment knowing, or under

the circumstances having reason to know, that said

assignment is intended for submission either in whole

or substantial part under a student’s name in fulfill

ment of the requirements for a degree, diploma, cer

tificate, course or courses of study at any university,

college, academy, school or other educational institu

tion. [N.J.S.A. 2A :170-77.16]

The prohibitions of V./.S.d. 2A:170-77.16 are limited by

N.JWS.A. 2A :170-77.16 which reads:

Nothing contained in this act shall prevent any

person from providing tutorial assistance, research

material, information or other assistanec to persons

enrolled in a university, college, academy, school or

other educational institution, which is not intended

for submission directly or in substantial part as an

assignment under the student’s name to such educa

tional institution in fulfillment of the requirements

for a degree, diploma, certificate of course of study.

Nor shall any person be prevented by this act from

rendering services for a fee which include the typ

ing, research, assembling, transcription, reproduce

tion or editing of a manuscript or other assign

ment which he has not prepared at the request of or

on behalf of the purchaser. [N.J/.S.A. 2A :170-77.17]

In a facial challenge alleging overbreadth, the first

task is to determine whether the statute reaches a sub-

stantial amount of constitutionally protected conduct. If

the statute does not so reach, the overbreadth claim must

fail. Vollage of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 7]

L.Ed.2d 362, 369 (1682). Where the enactment does pro-

hibit protected communitative conduct, as opposed to

pure speech, a sufficiently important governmental! inter-

est in regulating the nonspeech element can justify the

incidental limitations of the First Amendment freedoms.

United States v. O’Brien, 391 U.S. 367, 376 88 S.Ct. 1673,

1678-1679, 20 L.Ed.2d 672, 679-680 (1968); Cox v. Louisi-

ana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 D.Ed.2d 471,

484 (1965); California v. LaRue, 409 U.S. 109, 117, 93

S.Ct. 390, 396, 34 L.Ed.2d 342, 351 (1972). As explained

in Giboney v. Empire Storage & Ice Co., 336 U.S. 490,

502, 69 S.Ct. 684, 691, 93 L.Ed. 834, 843-844 (1949)

[I]t has never been deemed an abridgment of freedom

of speech or press to make a course of conduct illegal

merely because the conduct was in part initiated, evi-

denced, or carried out by means of language, either

spoken, written, or printed. Such an expansive inter-

pretation of the constitutional guarantees of speech

and press would make it practically impossible ever

to enforce laws against agreements in restraint of

trade as well as many other agreements and con-

spiracies deemed injurious to society [citations

omitted}.

A governmental regulation of communicative conduct

withstands constitutional scrutiny if it furthers an import-

ant or substantial governmental interest, if it can be jus-

tified without reference to the content of the regulated

speech and if sufficient alternative channels remain for

the communication of the information. United States v.

O’Brien, supra, 391 U.S. at 377, 88 S.Ct. at 1679, 20 L.Ed.

9d at 680. In the instant case, it is clear that N.J.S.A.

9A :170-77.16 is not a direct infringement upon either non-

commercial or commercial speech. The enactment does

not limit the seller’s right to engage in free speech, free

press or the dissemination of information. Rather the

statute prohibits the sale and offer for sale of assignments

the seller knows will be submitted in whole or in substan-

tial part under a student’s name in fulfillment of a re-

quirement of an educational institution. It is ecommercial-

ized cheating, the selling of materials known to be utilized

to effect plagiarism, which is prohibited, not the writing

or sale of research material. The act therefore does not

restrict speech as such, but simply prohibits the knowing

sale of assignments to be used for illicit cheating. The

statute then does not embrace either noncommercial or

commercial speech. Village of Hoffman Estates v. Flip-

side, Hoffman Estates, Inc., supra, 455 U.S. at 496-497,

102 S.Ct. at 1192, 71 L.Ed.2d at 370-371.

Assuming that the statute is viewed as limiting com-

mercial speech, it is well established that a government

may regulate illicit activities such as plagiarism in the

classroom. Because the act is aimed only at sales of

assignments which are used as part of cheating schemes,

the statute is valid. Moreover, the overbreadth doctrine

does not apply to commercial speech and Magee’s over-

breadth claims are therefore insubstantial. Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra,

455 U.S. at 496-497, 102 S.Ct. at 1192, 71 L.Ed.2d at 370;

Town Tobacconist v. Kimmelman, 94 N.J. 85, 126 (1983).

Moreover, even if NV.J.S.A. 2A:170-77.16 is considered

as a restriction upon conduct which involves a significant

communicative element, such as burning a draft ecard or

marching in an anti-nuclear protest, it is clear that the

act withstands the multi-pronged test enunciated in

O’Lrien, supra. As explained by the Appellate Division,

10

The statute prohibits the sale or offer for sale

of academic assignments, regardless of content or

subject matter, only when the distributor knows or

has reason to know that the assignment is intended for

submission under the student’s name for academic

credit. Second, it clearly advances a compelling gov-

ernmental interest. combatting blatant, commercial-

ized assistance in cheating that subverts the integrity

of the educational system. Finally, V.J.S 4. 2A:170-

77.17 provides an adequate means of disseminating

research materials or other information which is not

intended for submission under the student’s name to

an educational institution. [Pal19].

The statute furthers the important State interest in

eliminating cheating in the academic setting and so in-

suring that students receive a thorough and quality educa-

tion. N.J.S.A. 2A :170-77.16 accomplishes this goal with-

out reference to the content of the purchased assignments

and specifically provides in N.J.S.A. 2A:170-77.17 for the

operation of research and tutorial enterprises which do not

knowingly aid in cheating schemes. Because the statute

‘vithstands the strict scrutiny accorded regulations of com-

municative conduct, the Appellate Division properly re-

jected Magee’s overbreadth argument.

Magee’s vagueness challenge to the ‘‘or under the

circumstances having reason to know” language of

N.J.S.A. 2A :170-77.16 was properly dismissed by the State

court because Magee was found to have actual knowledge

that the papers purchased from him by the undercover of-

ficers were to be submitted under the purchasers’ names

and the ‘‘having reason to know’’ phrase of the statute

was therefore not applied to him. It is well established that

a person who engages in conduct which is clearly pro-

scribed by an enactment cannot complain of the vague-

11

ness of the law as applied to others. Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., supra, 455 U.S.

at 495, 102 S.Ct. at 1191, 71 L.Ed.2d at 370; Parker v.

Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d

439, 458 (1974). The State court’s dismissal of Magee’s

vagueness argument was clearly proper because Magee’s

action, the sale of assignments the seller knows will be

used in a cheating scheme, is clearly proscribed by the

act.

In sum, the law at issue serves a valid purpose and

addresses a serious problem affecting educational insti-

tutions. The New Jersey Legislature has chosen to ad-

dress this problem by basing its enactment upon a Model

Act. See Ambash, ‘‘Trapping Term Paper Cheaters by

Statute,’’? 59 A.b.A.J. 162, 165 (Feb. 1973). The law is

narrowly drafted to avoid precisely the constitutional con-

cerns raised by Magee and the State therefore submits

that the constitutional challenge to N.J.S.A, 2A :170-77.16

is without merit and that the petition for a writ of cer-

tiorari should accordingly be denied.

co)

12

CONCLUSION

For the aforementioned reasons, it is respectfully. sub-

mitted that the petition for a writ of certiorari should be

denied.

Respectfully submitted,

W. CARY EDWARDS

Attorney General of New Jersey

Attorney for Respondent,

State of New Jersey

By: /s/ Mark Fleming

Deputy Attorney General

Counsel of Record

DATED: February 11, 1986