Petition for Writ of Certiorari — Kirchgessner v. Wilentz

Dourt, U.S.

(1) ~ FILED

96 635 OCT 2 1 19%

No.

In T

Supreme Court Of The Wnited States

OCTOBER TERM 1996

+

ROBERT F. KIRCHGESSNER, JR.; MICHAEL KRANYAK;

ANDY KAFEL; JACK TOMASELLI; CHARLES BENE;

MAUREEN COOL; BILL SHEERAN; PROBATION

OFFICERS/FOP MEMBERS ON BEHALF OF THEMSELVES

AND ALL OTHERS SIMILARLY SITUATED;

THE PROBATION ASSOCIATION OF NEW JERSEY,

Vv.

Petitioners,

ROBERT N. WILENTZ; ROBERT L. CLIFFORD;

ALAN B. HANDLER; STEWART G. POLLOCK;

DANIEL J. O’HERN; MARIE L. GARIBALDI;

GARY S. STEIN, IN THEIR OFFICIAL CAPACITIES AS

JUSTICES OF THE SUPREME COURT OF NEW JERSEY,

Respondents.

+

Petition for a Writ of Certiorari to the

United States Court of Appeals For The Third Circuit

-o-

PETITION FOR A WRIT OF CERTIORARI

co

A.J. FUSCO, JR., P.A.

150 Passaic Avenue

Post Office Box 838

Passaic, New Jersey 07055

(201) 779-1163

Attorneys for Petitioners

Robert F. Kirchgessner, Jr., et al.

A.J. F usco, Jr.

On the Petition

October 17, 1996

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LANTAGNE LEGAL PRINTING x]

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTIONS PRESENTED FOR REVIEW

1. Did the petitioners establish a violation of First

Amendment associational and free speech rights?

LIST OF PARTIES

Parties to this petition are the petitioners Robert A.

Kirchgessner, Jr., Michael Kranyak, Andy Kafel, Jack

Tomaselli, Charles Bene, Maureen Cool, Bill Sheeran,

Probation Officers/Fraternal Order of Police (“FOP”)

members on behalf of themselves and all others similarly

situated, and the Probation Association of New Jersey. The

respondents are Robert N. Wilentz, Robert L. Clifford, Alan

B. Handler, Stewart G. Pollock, Daniel J. O'Hearn, Marie L.

Garibaldi, Gary S. Stein, in their official capacities as justices

of the Supreme Court of New Jersey.

Page No.

QUESTION PRESENTED FOR REVIEW. ......... i

AEE Se TEE Ses eces eee tenes ce babboas ii

SE EE RTE ib 6k ERO A 68 ee SESS iii

TABLE OF CONTENTS (APPENDIX) .......... iv

pe Fe sere Se ee Os fe 8 ee ree v

FEDERAL CONSTITUTIONAL PROVISIONS

ORT Fok bee RAVER OHSAS Ss aeons vii

OPINIONS AND ORDERS BELOW ............. 2

eer > eerie tere, oF 3

DEPEMIEEETT CIE REM EARS Fu eile esse ees 3

REASONS FOR GRANTING THE WRIT ........ 12

POINT I

THE PETITION FOR CERTIORARI SHOULD BE

GRANTED SINCE THE PETITIONERS HAVE

ESTABLISHED A VIOLATION OF FIRST

AMENDMENT ASSOCIATIONAL AND FREE

SPEECH RIGHTS; THE STRICT SCRUTINY TEST

SHOULD BE APPLIED; AND EVEN UNDER THE

PICKERING/CONNICK BALANCING TEST, THE

NEW JERSEY SUPREME COURT'S INTEREST IN

THE MAINTENANCE OF AN _ IMPARTIAL

JUDICIARY DOES NOT OUTWEIGH THE

PROBATION OFFICERS’ INTEREST IN BEING

MEMBERS OF THE FOP ...............- 12

CRIS: Bags aia 60d Con CVG ce eens ewe 24

APPENDIX TO PETITION

THIRD CIRCUIT COURT OF APPEALS

JUDGMENT ORDER DATED JULY 19, 1996 ..... 1A

DISTRICT COURT LETTER-OPINION DATED

PL A, Fs 6s OR a ha oe eee aes 3A

DISTRICT COURT ORDER DATED

Ps BE an 6 Fk Kec Fo a en CIES 0 41A

ORDER DENYING PETITION FOR REHEARING

AND REHEARING IN BANC DATED

PE EE OUD 6 CREA Ore S eo beer ede 42A

“ADMINISTRATIVE RULING” OF THE

NEW JERSEY SUPREME COURT DATED

po OG A ag On rr 444A

REPORT OF SPECIAL MASTER ............- T3A

iv

Beil Board of Public Ed. of Phil

357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958) . 15

Connick v. Meyers,

461 ULS, 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) 18

Edwards v. South Carolina,

372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) .. 13

Griswold v.C ,

381 US. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) . 12

Hughes v. Lipscher, 740 F.Supp. 565 (D.N.J. 1989) .. 16

Oreste royce

385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) .. 15

Mescall v. Rochford,

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Vv ion,

391 U.S. 563, 99 S.Ct. 1731,

ND gs kc ct oc vo knw aecn 18,19,21

Robinson v. Reed,

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|

SS. v. Nati T nion,

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Wieman v. Updegraff,

344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952) ... 14

vi

N TIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides, in pertinent part, that:

Congress shall make no law ... abridging the

freedom of speech ...

The Fourteenth Amendment to the United States

Constitution provides:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the States wherein they reside. No States

shall make or enforce any law which shall

abridge the privileges or immunities of citizens

of the United States; not shall any States

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the law.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

ROBERT A. KIRCHGESSER, JR.; MICHAEL

KRANYAK; ANDY KAFEL; JACK TOMASELLI,

CHARLES BENE; MAUREEN COOL; BILL SHEERAN;

PROBATION OFFICERS/FOP MEMBERS ON BEHALF

OF THEMSELVES AND ALL OTHERS SIMILARLY

SITUATED; THE PROBATION ASSOCIATION OF

NEW JERSEY,

Petitioners,

ROBERT N. WILENTZ; ROBERT L. CLIFFORD; ALAN

B. HANDLER; STEWART G. POLLOCK, DANIEL J.

O’HEARN; MARIE L. GARIBALDI; GARY S. STEIN; IN

THEIR OFFICIAL CAPACITIES AS JUSTICES OF THE

SUPREME COURT OF NEW JERSEY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

The petitioners, Robert A. Kirchgessner, Jr., et al.,

respectfully pray that a writ of certiorari issue to review the

1

Orders of the United States Court of Appeals for the Third

Circuit dated July 19, 1996 and August 21, 1996 (and the

Order of the District Court dated April 28, 1995).

OPINIONS AND ORDERS BELOW

The opinion of the New Jersey Supreme Court dated

July 8, 1994, is annexed to the appendix as 44A.

The opinion of the District Court of New Jersey dated

April 28, 1995, is annexed as 3A.

The order of the District Court of New Jersey dated

April 28, 1995, is annexed as 41A.

The judgment order of the United States Court of

Appeals for the Third Circuit dated July 19, 1996 is annexed

as 1A.

The order of the United States Court of Appeals for

the Third Circuit denying rehearing and rehearing in banc

dated August 21, 1996, is annexed as 42A.

Cree ate ee)

JURISDICTION

On July 19, 1996, the United States Court of Appeals

for the Third Circuit affirmed the judgment of the District

Court of New Jersey. On August 21, 1996, the Court of

Appeals denied the petition for rehearing and rehearing in

banc. The jurisdiction of this Court to review the judgment

of the United States Court of Appeals for the Third Circuit is

invoked under 28 U.S.C. sec. 1254(1).

STATEMENT OF THE CASE

In October and November of 1993, the Probation

Association of New Jersey (“PANJ”), passed a referendum to

affiliate itself with the Policeman Benevolent Association of

New Jersey (the “State PBA”). In September of 1994, the

States PBA agreed to become affiliated with the PANJ, if

such affiliation was not prohibited by law. Additionally,

many of the petitioners were, at that time, members of the

Fraternal Order of Police (the “FOP”), including

Kirchgessner.

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.

On March 3, 1994, in response to a request by the

Chief Probation Officers’ Association, the New Jersey

Supreme Court announced that it would review its

longstanding policy prohibiting probation officer membership

in law enforcement organizations, namely the State PBA and

the FOP. The New Jersey Supreme Court appointed retired

Superior Court Judge Paul R. Huot, as a special master (the

“Special Master”), to develop a factual record to aid in its

review of the matter. Judge Huot was designated to create a

factual record and recommend findings concerning the issue

of whether probation officers could continue as members, or

otherwise join, associate and affiliate, with the FOP. The

questions framed by the Supreme Court for which it desired

a factual record and recommended findings of fact are:

1) What impact, if any, will membership of

probation officers in the FOP or the State PBA

have on the probation function?

2) Will the affiliation of PANJ with the State

PBA result in membership in the PBA of

probation officers who are members of PANJ?

a RA et i i a ng _

3) What is the present number of probation

officers who are members of the FOP and

what have their activities been in connection

with that organization?

4) To what extent, if any, may probation

officers become involved in or be seen as

supporting political activity as a result of

membership in either FOP or State PBA?

5) Does the Legislation (N.J.S.A. 34:13A-5.5)

prohibiting, subject to certain exceptions,

police officers from joining an employee

organization that admits non police to

membership imply any legislative policy

related to the potential impact on non-police

members of such an organization? (74A-

75A*).

Preliminarily, Special Master Huot found that there

are between 700 and 800 New Jersey Probation Officers who

are presently members of the FOP and have been for twenty

years. (91A). As to Question: Number 1, Special Master

Huot found that:

The testimony and evidence submitted with

respect to the impact of membership in a

police organization upon the probation

function was not such that a true factual

determination can be made. The testimony

was opinion and speculation. (76A).

5

As to Question Number 2, Special Master Huot

concluded:

This Special Master does not see any

consequences, for good or ill, upon the current

PBA members. Since public employees are

not permitted to strike, there is no benefit to

either group in its collective bargaining.

The consequences of affiliation to the

organization of the probation officers

association is similar to the consequences to

each individual member as set forth in the

discussion of the Constitution and By-Laws of

the State PBA. It will lose its present

autonomy as an organization. (86A).

As to Question Number 3, Special Master Huot

concluded:

... The recommended finding of fact, therefore,

is that the Fraternal Order of Police in New

Jersey is a social and fraternal association and

that the activities of its members are social,

non political and nonlabor oriented. However,

lodges in other states have represented

probation officers in collective bargaining.

(88A).

As to Question Number 4, Special Master Huot

concluded:

The Fraternal Order of Police is not

ee a 1d

3

i

i

4

4

engaged in partisan political activity.

The Policeman’s Benevolent

Association is, from time to time, engaged in

partisan political activity. It may support or

oppose candidates for elective office and

support or oppose legislation .. It is

recognized that its activity, although in support

of or opposition to a candidate for elective

office, is not determined by the political party

to which that candidate belongs. (88A).

As to Question Number 5, Special Master Huot

concluded:

It was not the duty of this Special Master to

interpret or apply the statute to either police

Officers or probation officers. There is no

determination by this Special Master that the

statute will or will not apply to police locals

or probation officer locals of the PBA. The

applicability of the statute with respect to the

police is the initial function of PERC. The

commission will conduct its own investigation

into the duties and powers of the members and

will make its own determination of whether

persons are classified as police or non police.

The chairman stated that all cases of this kind

are fact sensitive. Generally, the power of

arrest, the right/duty to carry a gun, to detect

crime, apprehend criminals will be evidence of

police activity, however, he could not apply

the criteria in the abstract. (89A)

Special Master Huot concluded that:

Membership in the Fraternal Order of Police

or the Policeman’s Benevolent Association will

not impact the function of probation if the

probation officer is an ethical professional

with integrity. (90A).

The report of the Special Master was submitted to the

Court on April 28, 1994. On July 8, 1994, the New Jersey

State Supreme Court (the “respondents: in their official

capacity) issued what it characterized as an “administrative

ruling.” (44A). In the Supreme Court's per curiam decision,

the respondents barred petitioners from joining, associating or

affiliating with the FOP. (71A-72A). In so doing, the

respondents failed to adopt nearly every factual finding

offered by the Special Master (who had been appointed by

respondents) after five days hearings.

The Court justified its disagreement with the Special -

Master because the factual evidence was insufficient given

the time constraints of the hearing. (45A). The Court

differed in its agenda for and assessment of the role of

8

probation officers. (45A-46A). The Court's unequivocal

“statement of basic probation policies” motivating its decision

include 1) probation officers must enforce court orders which

must be respected and obeyed, notwithstanding lack of

resources; 2) cooperation between probation and police is

essential, exists today, and is “strongly encouraged” by the

Court; 3) probation has become increasingly dangerous, and

the safety of officers should be ensured; 4) the punitive

function probation cannot be compromised; and 5) probation

needs a greater emphasis on rehabilitation. (47A-48A). The

primary basis for the Court’s ruling was that there is a

“fundamental difference” between probation and police

organizations. (46A). Probation is viewed as an “integral”

arm of the judiciary, and subject to judicial integrity and

impartiality — “totally and scrupulously so.” (46A). To the

contrary, police are viewed as “law enforcement” standing

“firmly and properly” on the side of the prosecution. (46A).

The enforcement of judicial orders, evidently, is not law

9

enforcement. The Court concludes that police and probation

“are not only different, but incompatible;” that “separation of

the two is essential to the impartiality of the probation

function and to the integrity of the judiciary.” (46A) and that

integration of the two “would do damage even as it affects

probation today” (S5S9A), because they have “adversarial

positions” in the Criminal Division. (60A). Consistent with

the July 8, 1994 opinion, the AOC issued a directive dated

December 7, 1994, which ordered that probation officers who

are current members of the FOP may not renew their existing

memberships, which ”... in any event must be terminated by

resignation or otherwise by January 1, 1995.”

On December 15, 1994, petitioners Kirchgessner et al.

filed a Verified Class Action Complaint and Jury Demand

against the justices of the Supreme Court of the State of New

Jersey alleging, inter alia, in Count I, a violation of the First

Amendment's guarantee of freedom to associate.

On December 15, 194, petitioners moved for a

10

preliminary injunction in the District Court. In addition to

petitioners’ suit, the PANJ also filed suit seeking a

preliminary injunction, as well, and the matters were

consolidated. Respondents (the Chief Justice and the

Associate Justices) filed a cross-motion to dismiss for failure

to state a claim.

On January 17, 1995, Judge Lechner heard the motion,

and on April 28, 1995, he issued an Order which granted the

respondents’ motion to dismiss the petitioners’ causes of

action based upon federal law; ordered that supplemental

jurisdiction not be exercised as to respondents’ causes of

action based upon state law; ordered that the cause of action

based upon Federal Law alleged by the petitioners be

dismissed without prejudice; ordered that the preliminary

injunction motion made by petitioners be denied as moot; and

ordered that the petitioners’ demand for class certification be

denied as moot. (41A).

A Notice of Appeal was filed on May 10, 1995.

11

On July 19, 1996, the United States Court of Appeals

for the Third Circuit entered a Judgment Order affirming the

judgment of the district court. (1A-2A). On August 21,

1996, the Third Circuit denied the petition for rehearing and

rehearing in banc. (42A-43A).

REASONS FOR GRANTING THE WRIT

INT I

THE PETITION FOR CERTIORARI SHOULD BE

GRANTED SINCE THE PETITIONERS HAVE

ESTABLISHED A VIOLATION OF FIRST

AMENDMENT ASSOCIATIONAL AND FREE SPEECH

RIGHTS; THE STRICT SCRUTINY TEST SHOULD BE

APPLIED; AND EVEN UNDER THE

PICKERING/CONNICK BALANCING TEST, THE NEW

JERSEY SUPREME COURT'S INTEREST IN THE

MAINTENANCE OF AN IMPARTIAL JUDICIARY

ODES NOT OUTWEIGH THE PROBATION OFFICERS’

INTERESTS IN BEING MEMBERS OF THE FOP

The First Amendment to the United States

Constitution guarantees the right of one citizen to associate

with other citizens for any lawful purpose free from

government interference. Griswold v. Connecticut, 381 U.S.

479, 483, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The First

12

ee a TE SG eT

Amendment also provides, in part: “Congress shall make no

law ... abridging the freedom of speech ...” The Fourteenth

Amendment extended the scope of the first amendment to

protect a citizen’s freedom of speech from invasion by the

individual states. See Edwards v. South Carolina, 372 U.S.

229, 235, 83 S.Ct. 680, 83, 9 LEd.2d 697 (1963). The

Government may not require an individual to relinquish rights

guaranteed by the First Amendment as a condition of public

employment. Robinson v. Reed, 566 F.2d 911 (Sth Cir.

1978). Union membership is protected by the right of

association under the First and Fourteenth Amendments.

ri t ' 7?

Woodward, 406 F.2d 137 (3d Cir. 1967). In Woodward,

Supra, the issue raised on appeal was whether public

employees, discharged because they had joined a labor union,

had a right of action under Section 1 of the Civil Rights Act

of 1871, 42 U.S.C. Section 1983 against the public official

who discharged them. In Woodward, supra, the defendant

13

argued that the plaintiffs had no federally protected right to

be continued in public employment. The Woodward Court

noted that the United States Supreme Court had disposed of

this argument in Wieman v. Updegraff, 344 U.S. 183, 191-

192, 73 S.Ct. 215, 219 97 L.Ed. 215 (1952), where the Court

stated:

“* * * [Tyhe facile generalization that there is

no constitutionally protected right to public

employment is to obscure the issue. For, in

United Public Workers, though we held that

the Federal Government through the Hatch Act

[18 USCA. Sections 118j, 1181] could

properly bar its employees from certain

political activity thought inimical to the

interests of the Civil Service, we cast this

holding into perspective by emphasizing that

Congress could not ‘enact a_ regulation

providing that no Republican, Jew or Negro

shall be appointed to federal office, or that no

federal employee shall attend Mass or take any

active part in missionary work.’ [citations

omitted]. We need not pause to consider

whether an abstract right to public

employment exists. It is sufficient to say that

constitutional protection does extend to the

public servant whose exclusion * * * is

patently arbitrary or discriminatory.”

Woodward, supra, at 140.

14

ea

This principle has been repeated by the Supreme

Court on a number of occasions. In Beilan v, Board of

Public Ed. of Phila., 357 U.S. 399, 405, 78 S.Ct. 1317, 1321,

s L.Ed.2d 1414 (1958), the Court stated that "By engaging in

teaching in the public schools, petitioner did not give up his

right to freedom of belief, speech or association. * * *” See

Keyishian v. f of Universit e of New

York, 385 U.S. 589, 605, 87 $.Ct., 675, 685, 17 L.Ed.2d 629

(1967); Mescall v. Rochford, 655 F.2d 111 (7th Cir. 1981) (a

tule of the Chicago Police Department which prohibited the

joining or retaining membership in, or soliciting other

members to join, any labor organization which was not

exclusively limited to full-time law enforcement officers

constituted an unconstitutional limitation on the policemen’s

First Amendment right to freedom of speech and assembly).

Petitioners note at this time that the language in the Chicago

Police Department Rule is similar to the language in N.J.S.A.

34:13A-5.3. The Court in Mescall concluded that Rule 54A

15

was unconstitutional. Id., at 113.

In the case sub judice, the respondents have conceded

that they had acted in a quasi-legislative fashion in

promulgating the regulation in question. As stated in the

opinion “Our determination is quasi-legislative, based on the

policy consideration noted below ...” (45A). The New

Jersey State Supreme Court has acted as a legislative branch

of state government, and has unquestionably restricted the

First Amendment rights of petitioners to speak freely,

advocate ideas, associate with others, and otherwise proceed

on behalf of their members. The Court acknowledged that

“ Associational rights are precious and should not be restricted

without reason ...” (68A).

In this case, as in the case of Hughes v. Lipscher, 740

F.Supp. 454 (D.N.J. 1989), there is no sufficiently important

State interest justifying the abridgement of the associational

interests of New Jersey’s probation officers. The Court's

violation of petitioners’ First Amendment rights cannot

16

en ee 2 eee wheseds beste

withstand the strict scrutiny normally given to such

regulations. As held in Mescall, the reasons for the

respondents’ decision are not sufficient to outweigh the first

amendment rights of the petitioners to be free from arbitrary

and overbroad restraints.

Petitioners submit that since the FOP interprets their

own Constitution or by-laws to permit membership by

probation officers, then that determination cannot and should

not be second guessed by the State Supreme Court, acting in

a legislative capacity. All private organizations and clubs

have the right to define their own membership without state

interference, and the only remaining question becomes

whether their membership violates existing and

constitutionally sound rules of conduct. The recently adopted

canons of conduct of judicial employees do not prohibit

probation officers from affiliating with the FOP. See,

Fraternal Order or Police New Jersey State By-Laws, Article

I, Section 2. The State Supreme Court, in its opinion,

17

acknowledges that “That State FOP’s Constitution has a

statement that it is not a ‘labor union.” (70A).

Respondents and the district court rely upon the cases

of Connick v. Meyers, 461 U.S. 138, 103 S.Ct. 1684, 75

L.Ed.2d 708, (1983) and Pickering v. Board of Education,

391 US. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and

argue that, under Pickering, the United States Supreme Court

has not applied a “strict scrutiny” test to restrictions on

speech and associations of public employees. The Pickering

and Connick cases are addressed in the recent United States

Supreme Court decision in United States v. National Treasury

Employees Union, _ U.S. _, 115 $.Ct. 1003 (1995).

In Treasury Employees, the Supreme Court addressed

a federal statute (Section 501(b) of the Ethics in Government

Act of 1978) prohibiting federal governmental employees

from receiving compensation for appearances, speeches or

articles. The Court held that the honoraria ban imposes the

kind of burden that abridges- speech under the First

> 18

Amendment. 115 §.Ct. at 1015. The Court held that where

the Government employees seek to exercise their ri ght as

citizens to comment on matters of public interest, and are not

attempting simply to speak as employees upon personal

matters, the Government must be able to satisfy a balancing

test of the type set forth in Pickering, supra, in order to

maintain a statutory restriction on the employees’ speech.

The Court noted that since the statute in question constitutes

a wholesale deterrent to a broad category of expression by a

massive number of potential speakers, the Government's

burden is even greater than it was in Pickering and its

progeny (which usually involved individual disciplinary

actions taken in response to particular government employees’

actual speech). Specifically, the Government must show that

the interest of both potential audiences and a vast group of

present and future employees in a broad range of present and

future expression are outweighed by the expression’s

“necessary impact on the actual operation” of the

19

Government. 115 S.Ct. at 1014.

The Court in Treasury Employees concluded that

although the statute neither prohibits any speech nor

discriminates among speakers based on the content or

viewpoint of their messages, its prohibition on compensation

unquestionably imposes a significant burden on respondents’

expressive activity by inducing them to curtail their

expression if they wish to continue their employment.

Moreover, the ban imposes a far more significant burden on

them than on the relatively small group of lawmakers whose

past recipient of honoraria assertedly motivated its enactment.

The large-scale disincentive to expression also imposes a

significant burden on the public's right to read and hear what

Government employees would otherwise have written and

said. Id. at 114-15. The Court in Treasury Employees _

concluded that the federal employees expressive activities fell

within the protected category of citizen comment on matters

of public concern rather than employee comment on matters

20

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related to personal status in the workplace. 115 S.Ct. at

1013. The Court concluded that the Government's burden

was greater with respect to this restriction on expression

(which chills potential speech before it happens) than with

respect to an isolated disciplinary action. Id. at 1014.

Petitioners submit that this is similar to the prohibition

imposed by the New Jersey State Supreme Court in the case

at bar before any affiliation even occurred.

The Treasury Employees Court found that the

Government “must show that the interests of both potential

audiences and a vast group of present and future employees

in a broad range of present and future expression are

outweighed by the expression’s ‘necessary impact on the

actual operation’ of the Government.” Pickering, 15 §.Ct. at

1014. The Government in Treasury Employees argued that

the ban on honoraria was necessary since “a wholesale

prophylactic rule is easier to enforce than one the requires

individual nexus determinations.” Id. at 1017.

21

Sr enn ness ts eset cst npn

Petitioners point out that this is a similar position as

that taken by the New Jersey Supreme Court, which has

utilized a prophylactic prohibition against probation officers

becoming members of affiliating with a law enforcement

organization because the Court does not believe that the AOC

is capable of monitoring the individual probation officers’

activities. The Court in Treasury Employees specifically

rejected such a blanket ban. As the Treasury employees

Court stated: “A blanket burden on the speech of nearly 1.7

million federal employees requires a much _ stronger

justification than the Government's dubious claim of

administrative convenience.” id. Special Master Huot, based

on the evidence adduced before him, found that “membership

in the Fraternal Order of the Police or Policeman’s

Benevolent Association will not affect the functions of

probation.” (78A). Moreover, Judge Huot found that

“membership in the FOP or PBA will not affect the view of

the probationer toward the probation officer.” (80A). Since

22

Se I as FS! feet 1 Oe

Judge Huot found that the function of probation would not be

affected, and since the view of a probationer toward a

probation officer would not be affected by petitioners’

affiliation with the FOP, Judge Huot found that there should

not be a generalized prohibition against probation officers

becoming members or affiliating with organizations such as

the FOP. (81A).

In fact, the New Jersey Supreme Court admitted that

its prohibition is not based upon any hard evidence, but upon

an unsupported belief. The Supreme Court based its decision

on nothing more than beliefs, predictions, and conjecture.

As stated above, the United States Supreme Court in

the Treasury Employees case specifically ruled that the

recited harms sought to be curtailed by the government must

be “real, not merely conjectural, and that regulation will in

fact alleviate harms in a direct and material way.” 115 S.Ct.

at 1017.

It is respectfully submitted that this Court should

23

adhere to the decision in Treasury Employees. and reverse

the Third Circuit's decision and the decision of the District

Court granting of the respondents’ motion to dismiss as to

Count 1 of the Kirchgessner complaint. Additionally, under

the reasoning of Treasury Employees, the preliminary

junction should have been granted.

CONCLUSION

Petitioners Robert A. Kirchgessner, Jr., et al.

respectfully submit that based upon the foregoing reasons, the

petition for certiorari should be granted. The Third Circuit

Court of Appeals has interpreted a federal question in a way

that conflicts with the decision of this Court in United States

v. National Treasury Employees Union, _ U.S. _, 115 S.Ct.

1003 (1995). The appeal also involves a question of

exceptional importance, to-wit, the rights of the FOP (and

other similar groups) to associate and to free speech.

24

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Dated: October 17, 1996

Respectfully submitted,

ANTHONY J. FUSCO, JR.