Opposition Brief — Magee v. Ruvoldt

3

8 5 ” 1 1 a f Supreme Court, US, |

_ FILED

IN THE FEB is jQR8 ,

SUPREME COURT OF THE UNITED STATES,

October Term, 19 CLERK ah j

JOHN S. MAGEE, Individually and

t/a COLLEGIATE RESEARCH SYSTEMS,

Petitioner,

vs.

HAROLD J. RUVOLDT, JR., Prosecutor

of Hudson County,

Respondent.

BRIEF IN OPPOSITION TO WRIT OF

CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

HAROLD J. RUVOLDT, JR.

Prosecutor of Hudson County

Attorney for Respondent

LAWRENCE H. POSNER

Assistant Prosecutor

On The Brief

OFFICE OF THE PROSECUTOR

Administration Building

595 Newark Avenue

Jersey City, New Jersey 07306

(201) 795-6400

QUESTIONS PRESENTED

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

ally infringes upon freedom of speech and freedom of

the press.

B. Whether N.J.S.A. 2A:170-77.16 is unconstitu-

tionally vague and overly-broad.

C. Whether petitioner was denied equal protection

of the laws by alleged selective enforcement of

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

TABLE OF CONTENTS

py EE Bg 80) 9 | > li

STATEMENT OF THE CASE ................. 1

REASONS FOR DENYING THE PETITION

I. NwJ.S.A. 2A:170-77.16 DOES NOT

INFRINGE UPON PETITIONER’S

FREEDOM OF SPEECH OR FREEDOM

og, 11

Il. N.J.S.A.2A:170-77.16 IS NOT VAGUE

a RE 8 | ra 17

Ill. THERE IS NOTHING IN THE RECORD

TO SUPPORT A CHARGE OF SELECTIVE

ENFORCEMENT OF THE LAW IN

VIOLATION OF THE EQUAL

PROTECTION CLAUSE OF THE

CONSTITUTION OF THE UNITED

GE 21

IV. PETITIONER WAS NOT

Gs oa 6 4 6s van snes sh eee 22

es Cy sp ones ssssocece cece 24

TABLE OF AUTHORITIES

Baggett v. Bullitt,

377 U.S. 360 (1964)

Bates v. State Bar of Arizona,

433 U.S. 350 (1970)

Bigelow v. Virginia,

421 U.S. 809 (1975)

Cantwell v. Connecticut,

310 U.S. 296 (1940)

Griswold v. Connecticut,

381 U.S. 479 (1965)

Lovell v. City of Griffin,

303 U.S. 444 (1938)

Oyler v. Boles,

368 U.S. 448 (1962)

People v. Magee,

423 N.Y.S.2d 417 (S.Ct. 1979)

Stanley v. Georgia

394 U.S. 557 (1969)

State v. Rockholt,

96 N.J. 570 (1984)

State v. Saksniit,

332 N.Y.S.2d 343 (S. Ct. 1972)

Thomas v. Collins,

323 U.S. 516 (1945)

ii-

page

17

16

16

14

15

15

21

11, 19, 23

16

22

19

TABLE OF AUTHORITIES (continued)

page

United States v. Twelve 200-Foot Reels

_of Super 8 mm Film,

413 U.S. 123 (1973) 16

Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc.,

455 U.S. 489 (1982) 17

Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, Inc.,

425 U.S. 748 (1976) 16

-il-

STATEMENT OF THE CASE

I. Ruvoldt v. Magee (Procedural History):

Petitioner, John S. Magee, operates a business

known as Collegiate Research Systems in Hoboken,

New Jersey. A verified complaint was filed on April

13, 1983. Petitioner was charged with two violations

of N.J.S.A. 2A:170-77.16. The complaint sought the

imposition of fines and injunctive relief. On May 4,

1983, after a hearing before the Honorable Robert E.

Tarleton, J.S.C., the Court issued a preliminary

injunction which restrained petitioner from doing

acts proscribed by N.J.S.A. 2A:170-77.16.

A trial was held before Judge Tarleton

(without a jury) on February 15 and 16, 1984. On

February 23, 1984, the Court found John S. Magee

Guilty of each violation. Fines were imposed, and a

permanent injunction was granted.

An appeal was taken to the Superior Court of

New Jersey, Appellate Division. In a per curiam

opinion dated August 15, 1985, the adjudications

below were affirmed. On October 15, 1985, the

Ae

Supreme Court of New Jersey denied a petition for

certification.

The Petition for Writ of Certiorari was served

upon Respondent on January 14, 1986.

Il. IN THE MATTER OF JOHN S. MAGEE,

CHARGED WITH CONTEMPT OF

COURT

(PROCEDURAL HISTORY):

On January 9, 1984, an Affidavit was filed in

the Superior Court of New Jersey asserting that John

S. Magee was in contempt of court. Judge Tarleton

issued an Order directing petitioner to show cause

before the Honorable Gregory J. Castano, J.S.C. why

he should not be held in contempt. Trial was held

before Judge Castano (sitting without a jury) on

January 17, 1984. On January 25, 1984, Judge

Castano found John S. Magee to be in contempt of the

preliminary injunction dated May 14, 1983. By Order

dated February 1, 1984, John S. Magee was sentenced

to pay a fine in the amount of five hundred dollars

and to be incarcerated for five days in the County

Jail.

This matter was consolidated on appeal with

the convictions for violationsof N.J.S.A.

2A:170-77.16. The adjudication of contempt was

affirmed.

Iii. RUVOLDT V. MAGEE

(UNDERLYING FACTS):

On March 24, 1983, in furtherance of an

investigation into alleged violations of N../.S.A.

2A:170-77.16, Hudson County Prosecutor’s Investi-

gator Donald Wiggins visited Collegiate Research in

an undercover capacity. Wiggins recorded his con-

versation with John S. Magee. Investigator Wiggins

ordered an original, fifteen-page paper written to his

specifications on nuclear arms control at a cost of

$12.00 per page. The tenor of the conversation be-

tween Investigator Wiggins and John Magee clearly

indicated that the paper was being purchased by a

student for submission to an institution of higher

education. Petitioner asked whether the paper should

be of graduate or undergraduate level, and when

Wiggins said “undergraduate,” Magee asked “what

3.

year?” Petitioner inquired, “What’s your due date?”

and Wiggins replied that he had to have it at the end

of the semester, but he could get a few brownie points

by submitting it a few days early. Wiggins and Magee

discussed an article about Collegiate Research which

had appeared in a local newspaper. Petitioner as-

sured Investigator Wiggins that he would not get into

trouble for dealing with him. Wiggins asked whether

the paper would be ready to hand in for the 10th.

Magee replied that it would.

In placing his order with John Magee, Inves-

tigator Wiggins completed an order form. That form

asked for a detailed description of the type of paper.

The form contained instructions to the writer telling

him (1) what to include in each five-page segment of

the paper, (2) whether to prepare a bibliography and

(3) if footnotes were to be used, where they should be

placed.

On March 29, 1983, Investigator Wiggins

returned to Collegiate Research and again recorded

his conversation with John Magee. Wiggins paid

Magee $180.00 cash. The paper which Wiggins re-

ceived had a title page without attribution. The paper

was in a format ready to be submitted by a student

without the necessity of re-typing.

On March 29, 1983, Prosecutor’s Investigator

Anthony Scott visited Collegiate Research and also

recorded his conversation with John Magee. He

purchased term papers (which were in Magee’s files)

on capital punishment for $70.00. Investigator Scott

asked, “There’s no problem with this, right? I can

hand this right in?” to which petitioner replied that

he didn’t care what Scott was going to do with it.

Magee said that he was just selling it; however, he

pointed out, “It’s all footnoted.” Investigator Scott

also asked about the recent newspaper article con-

cerning Collegiate Research. Scott said something

about people who “take papers from other people.”

Petitioner made a nebulous reply.

At trial, John S. Magee asknowledged his

voice on the taped conversations with Wiggins and

Scott. He gave no explanation of his remarks. Magee

5.

testified that during 1982 and 1983, he employed

someone to distribute his business cards on street

corners near college campuses. He told the Court that,

between September 1982 and April 1983, he sold 206

original papers written to the purchasers’ specifica-

tions and between April 1983 and February 1984 he

sold 357 such papers. These academic papers were

prepared by writers whom petitioner employed. John

Magee explained that once a paper had been pre-

pared, a copy was placed into the files (for which a

catalog was maintained). Thereafter, another student

may purchase such a paper from those on file.

Petitioner estimated that he sold an equal number of

original papers and papers on file. Magee estimated

that 95% of his customers between September 1982

and February 1984 were college students.

Petitioner testified that he had been aware of

the provisions of N.J.S.A. 2A:170-77.16 since the

enactment of that law. Prior to moving to 70 Hudson

Street, he operated in New York, where he had been

enjoined for violating a statute similar to N.J.S.A.

2A:170-77.16. 6

~

The trial court determined that John S. Magee

was in the business of preparing papers on various

academic subjects primarily for sale to students in a

format that can be submitted under a student’s name

in fulfillment of academic requirements. Judge

Tarleton, in his findings of fact, accurately described

Collegiate Research System’s as a “term paper mill.”

The record conclusively and beyond a reasonable

doubt convinced the Court that John S. Magee

engaged in conduct contrary to N.J.S.A. 2A:170-77.16.

IV. IN THE MATTER OF JOHN S. MAGEE,

CHARGED WITH CONTEMPT OF

COURT

(UNDERLYING FACTS):

On May 4, 1983, Judge Robert E. Tarleton

entered a preliminary injunction restraining John S.

Magee, individually and trading as Collegiate Re-

search Systems, its agents, servants and employees

from

waning offering to »repare, selling or

offering for sale any term paper, thesis,

dissertation, a report or other written,

recorded, pictorial, artistic or other =—

ment knowing, or under circumstances hav

ing reason to know, that said assignment is

7.

intended for submission either in whole or

substantial part under a student’s name in

fulfillment of the requirements for a degree,

diploma, certificate, course or courses of study

at any university, college, academy, school or

other educational institution for any fee or

other remuneration, in violation of Jv.J.S.A.

2A:170-77.16 until the further order of the

Court.

On November 30, 1983, Prosecutor’s Investi-

gator Terrence Hull placed a telephone call to Col-

legiate Research and tape-recorded the conversation.

Mr. Hull inquired whether he could obtain a five page

paper by the following week. Several prices were

quoted to Hull. Thereafter, on December 7, 1983,

Investigator Hull visited Collegiate Research and

recorded his conversation with John Magee. Hull

ordered a paper on cocaine and paid $105.00. He filled

out an order form (as described supra). Investigator

Hull asked petitioner whether the blank marked

“subject” on the form meant title of the course for

which the paper was being written. Magee responded

that he did not get involved in any of that and

directed Hull’s attention to a disclaimer sign hanging

nearby. Investigator Hull left and returned a few

-8-

minutes later. He changed the topic to heroin, telling

petitioner that a friend told him cocaine could not be

used for the assignment.

On December 28, 1983, Investigator Hull

picked up his paper. He recorded his conversation

with John Magee. Hull asked whether there was a

danger that someone else might have ordered the

same topic. Petitioner assured him that this could not

occur. Magee pointed out that the paper had numer-

ous footnotes, to which Hull replied that’s what his

teacher liked.

The paper purchased by Investigator Hull

was in a format which could be handed in without

re-typing. The paper had a complete bibliography

and extensive footnotes. There was no attribution.

Judge Castano found that the purported dis-

claimers posted by petitioner were insincere and were

merely intended as a defense to any future actions.

The Judge determined that Magee had reason to

know that the assignment was intended for submis-

sion in fulfillment of a student’s learning require-

-9-

ments. The Court was convinced beyond a reasonable

doubt that petitioner had willfully and deliberately

violated the preliminary injunction. John S. Magee

was adjudicated Guiity of Contempt.

POINT ONE

N.J.S.A. 2A:170-77.16 DOES NOT

INFRINGE UPON PETITIONER’S

ne tine ae — OR FREEDOM

There is no First Amendment right to aid and

abet cheating students to defraud educational insti-

tutions. Petitioner claims that he is a mere dissemi-

nator of information whose constitutional right of

free expression has been abridged by the statute in

question. This argument misconceives the statutory

restrictions. N.J.S.A. 2A:170-77.16 in no way inter-

feres with the content of expression. It does, however,

make unlawful the preparation or sale of materials

which the seller knows will be used by students in a

plagiaristic manner.

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

1979), the Court upheld a similar New York iaw

against the same type of constitutional attack by

petitioner herein. Judge Wallach correctly found that

even though papers sold by Magee could be used

lawfully, the statute interdicting them was not thus

41-

rendered unconstitutional. 423 N.Y.S. 2d at 419. He

analogized, reasonably, that “(a) gaming device

which could be played for sheer entertainment may

be outlawed if the purpose to which it is put is

gambling.” Id., at 420. The New York court noted that

the format of Magee’s product was designed for direct

submission to an academic institution, and this

indicated unlawful intended use. Id. N.J.S.A.

2A:170-77.16 does not proscribe the dissemination of

ideas. The statute merely proscribes the distribution

of term papers, theses, dissertations essays and

reports which the distributor knows or, under the

circumstances, has reason to know will be used

deceptively.

The constitutional protections afforded com-

mercial speech are less than those provided other

constitutionally guaranteed expression. Commercial

speech may be regulated or banned if it proposes an

illegal transaction. In the case at bar, Magee’s busi-

ness is commercial in nature. Collegiate Research

Systems distributes its product for an illegal purpose

-12-

(to defraud educational! institutions). Students obtain

papers which they submit fraudulently as their own

work. [t is proper for the Legislature to regulate such

speech, because it proposes an illegal transaction.

The tenor and content of Collegiate Research Sys-

tems advertising and solicitation are indicative of the

unlawful intent of this business operation, the sup-

plying of papers to students so that they may be

submitted by these purchasers to their educational

institutions in violation of N.J.S.A. 2A:170-77.16.

Petitioner claims that Collegiate Research Systems is

virtually identical to Encyclopedia Britannica Re-

search Service and says that his customers include

government and corporate officials and public in-

terest groups, yet, by his own estimate, 95% of

petitioner’s customers are college students!

Petitioner’s conduct is no more deserving of

First Amendment protection as free speech than

polygamy, the use of drugs (i.e., peyote, marijuana,

hashish, LSD), or the handling of poisonous snakes

have received under the guise of religious freedom.

3%.

In Cantwell v. State of Connecticut, 310 U.S. (1940),

the Supreme Court repeated the “‘belief - action

dichotomy” applicable to First Amendment cases.

The Court observed that the First Amendment

embraces two concepts — freedomto believe and

freedom to act. The first is absolute, but the second

cannot be. 310 U.S. at 303. The First Amendment

guarantees freedom to disseminate information and

ideas; however, that amendment does not guarantee

petitioner the absolute right to sell his product in a

form which readily lends itself to deceptive use. The

New Jersey Legislature enacted N.J.S.A.

2A:170-77.16 in response to a rampant epidemic of

plagiarism which was fostered by “‘ready-to-

submit” term papers. The format of the product sold

by John S. Magee is the essence of the statutory

violation. He was not selling research monographs

(a mere study aid). Such sales are permitted. See

N.J.S.A. 2A170-77.17.* Petitioner’s sanctimonious

and pious invocation of the First Amendment does

not alter the reality that he knowingly promoted

-14-

plagiarism. The State may and has properly declared

such conduct to be unlawful. Petitioner is not advanc-

ing ideas, nor is he advocating any philosophy. He is

— exploiting a market. His product is clearly a

tool of deception. The State may attack such decep-

tion at the source, and by enactment of N.J.S.A.

2A:170-77.16, New Jersey has done so.

The Supreme Court has found laws which

inhibit the receipt of information to be unconstitu-

tional. See Lovell v. City of Griffin, 303 U.S. 444 (1938)

[ordinance which prohibited distribution of literature

of any kind without permission of city manager];

Thomas v. Collins, 323 U.S. 516 (1945) [law which

required union organizer to register before soliciting

members]; Griswold v. Connecticut, 381 U.S. 479

(1965) [law which penalized anyone who assisted or

counseled (ie., provided information about) use of

” Nothing contained in this act shall prevent any person

from providing tutorial assistance, research material,

information or other assistance to persons enrolled in a

university, college, academy, school or other educa-

tional institution, which is not intended for submission

directly or in substantial part as an assignment under

the student’s name to such educational institution in

fulfillment of the requirements for a degree, diploma,

certificate or course of study. ...

-15-

contraceptives]; Bigelow v. Virginia, 421 U.S. 809

(1975) [law which proscribed dissemination of in-

formation about the availability of abortions in New

Jersey, where they were legal]; Virginia State Board

of Pharmacy v. Virginia Citizens Consumer Council,

Inc., 425 U.S. 748 (1976) [statute which prohibited

advertisement by licensed pharmacists of prices for

prescription drugs]; Bates v. State Bar of Arizona, 433

U.S. 350 (1970) [prohibition on advertisement of fees

for legal services]. The Court distinguished the right

to possess obscene material in the privacy of one’s

home — Stanley v. Georgia, 394 U.S. 557 (1969) —

from the right to distribute such material. United

States v. Twelve 200-Foot Reels of Super 8mm Film,

413 U.S. 123 (1973). Students have a constitutional

right of access to information; however, the First

Amendment does not guarantee the right to have a

term paper, thesis or dissertation “ghost-written”.

-16-

POINT TWO

N.J.S.A. 2A:170-77.16 IS NOT VAGUE

OR OVERLY-BROAD.

The product sold by Collegiate Research Sys-

tems constitutes “commercial speech,” not “pure

speech.” The overbreadth doctrine does not apply to

commercial! speech. Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496-497

(1982).

A statute falls for vagueness if men of

common intelligence must necessarily guess at its

meaning and differ as to its application. Baggett v.

Bullitt, 377 U.S. 360, 367 (1964). N.J.S.A. 2A:170-77.16

must be read in conjunction with N.J.S.A. 2A:170-

77.17. The legislative intent is clear. The average

reasonable man cannot fail to recognize a “term

paper,” “thesis” or “dissertation.” These forms of

exposition are readily distinguishable from a study

guide or research monograph.

Petitioner asserts that the subject statute does

not define the offense in unmistakable language. The

-17-

ere rd eile

|

statute allows some research to be prepared and sold

but prohibits it where the seller knows or where from

attendant circumstances he has reason to know that

the material is intended for submission under a

student’s name to fulfill a course requirement. Peti-

tioner asserts that he is being held liable based upon

the intent of his customer. Magee alleges that such a

transferred intent renders the statue unconstitution-

ally vague. This analysis is not applicable to N.J.S.A.

2A:170-77.16. Petitioner’s guilt is not based upon the

buyer’s intent but upon petitioner’s knowledge.* That

knowledge is inferred from the seller’s statements to

purchasers and purchasers’ statements to the seller.

Knowledge is also inferred from a pattern of market-

ing that suggests, encourages and fails to properly

discourage unlawful use of the product.

From the conversations between Magee and

the Prosecutor’s Investigators, it is clear that peti-

. The fact that neither Investigator Wiggins nor Inves-

tigator Scott was actually a student enrolled in an

academic institution and that neither actually in-

tended to submit the papers sold by petitioner in

fulfillment of course requirements is irrelevant to

Magee’s culpability.

-18-

tioner knew he was dealing with purported students

who wanted to buy papers to hand in for course

assignments; Petitioner’s pattern of marketing, as

shown by his advertising, is geared towards the

college student, and, as indicated in People v. Magee,

supra. at 420, “These typewritten papers, in a format

designed for direct submission, and taken together

with the defendant’s seductive sales literature are full

proof of unlawful intended use.”

Petitioner’s arguments that his services are

comparable to legitimate research services provided

by companies such as Encyclopedia Britannica are

specious. There are significant differences in format,

in attribution, in design and, most particularly, in

purpose between such organizations and Collegiate

Research Systems. See State v. Saksniit, 332 N_.Y.S 2d,

343, 348-349 (S.Ct. 1972).

Petitioner asserts that the statute is also

vague because it allows a finding of guilt not only

based on actual knowledge but also under circum

stances where the seller has reason to know that the

-19-

paper will be put to the prohibited use. It should be

noted that Judge Tarleton found beyond a reasonable

doubt actual knowledge on Magee’s part. Referring to

the conversations between Wiggins and Scott and

Magee, Judge Tarleton found that Magee had en-

gaged on those dates in the sale of a paper which

Magee knew was intended for submission to an

educational institution in violation of the statute.

Findings of the trial court indicate that Magee knew

the intention of the purchasers when he made these

sales. The Judge also found Magee’s assertions to the

contrary to be unbelievable.

WAL

POINT THREE

THERE IS NOTHINGIN THE RECORD

TO SUPPORT A CHARGE OF

SELECTIVE ENFORCEMENT OF THE

LAW IN VIOLATION OF THE EQUAL

PROTECTION CLAUSE OF THE

CONSTITUTION OF THE UNITED

STATES.

Petitioner argues that his right to equal pro-

tection of the law has been violated by the selective

enforcement of N.J.S.A. 2A:170-77.16 against him by

respondent. There is nothing in the record to suggest

any support for this position. Some selectivity in the

enforcement of the law is not a denial of constitu-

tional rights. Equal protection is denied only if the

selection is deliberately based upon impermissible

standards such as race, religion or other arbitrary

classification. Oyler v. Boles, 368 U.S. 448, 456 (1962).

The facts do not support the selection of John S.

Magee for investigation based upon any such im-

permissible criteria. Rather, petitioner was prose-

cuted for a violation of this statute because the

notorious manner in which he was flaunting the law

came to theattention of respondent.

2-

—

ILABLE COPY

POINT FOUR

PETITIONER WAS NOT ENTRAPPED.

Both Judge Tarleton and Judge Castano

found that petitioner had not been entrapped. The

most recent expression by the Supreme Court of New

Jersey on the law of entrapment is found in State v.

Rockholdt, 96 N.J. 570 (1984). There the Court held

that under the Penal Code, the burden to prove

entrapment is upon the defendant (by a preponder-

ance of the evidence). To establish entrapment, a

defendant must show both (1) that the police conduct

created a substantial risk that the crime would be

committed by a person not disposed to commit it and

(2) that the police conduct caused the particular

defendant to commit the crime. John S. Magee has

failed to establish either.

The facts in the present case demonstrate

clearly that John S. Magee was someone in the

business of supplying papers to students in violation

of N.J.S.A. 2A:170-77.16. Magee’s comments to the

Investigators, his marketing approach and the

29.

format of the products pointed to the inescapable

conclusion that his normal operating procedure was

violative of the statute. His business was, as charac-

terized by Judge Tarleton, a “Term Paper Mill.” His

past history, as evidenced in People v. Magee, 423

N.Y.S. 2d 467 (S.Ct. 1979), negates any argument that

he was not predisposed to violate the statute.

Petitioner was not solicited to commit the

offense. He was, in fact, advertising his availability

to perform these services. The Investigators’ conver-

sations with Magee merely provided petitioner with

an opportunity to manifest his intention. Petitioner,

in his comments to the Investigators, made it ap-

parent that he was aware of the ostensible purpose of

the sale of his material. It should be noted that in the

New York case, undercover operatives were also

utilized by the Attorney General’s Office to establish

that Magee was violating that Court’s preliminary

injunction. People v. Magee, supra.

23.

CONCLUSION

For the foregoing reasons, the Petition for

Writ of Certiorari should be DENIED.

BY:

Respectfully submitted,

HAROLD J. RUVOLDT, JR.

Prosecutor of Hudson County

LAWRENCE H. POSNER

Assistant Prosecutor

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