# Opposition Brief — Magee v. Ruvoldt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1065

## Text

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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1349%3A3. Public record. Not legal advice.