                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2003

Fox v. Jackson
Precedential or Non-Precedential: Non-Precedential

Docket 02-1870




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Fox v. Jackson" (2003). 2003 Decisions. Paper 612.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/612


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                              NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 02-1870




                   WILLIAM FOX,
                            Appellant

                         v.

            TOWNSHIP OF JACKSON,
        A New Jersey Municipal Corporation;
                JOSEPH GRISANTI,
    Individually and as Township Committeeman;
             MICHAEL BRODERICK,
    Individually and as Township Committeeman;
              MARVIN KRAKOWER,
    Individually and as Township Committeeman




   On Appeal from the United States District Court
           for the District of New Jersey
        D.C. Civil Action No. 01-cv-00202
         (Honorable Garrett E. Brown, Jr.)




   Submitted Pursuant to Third Circuit LAR 34.1(a)
                  January 9, 2003

Before: SCIRICA, BARRY and SMITH, Circuit Judges

          (Filed     April 28, 2003       )
                               OPINION OF THE COURT


SCIRICA, Circuit Judge.

       Appellant was a township municipal clerk who brought suit after being denied

reappointment by the governing board. At trial, a jury rejected his claim that he was

terminated because of his political views and rendered a verdict for all defendants.

                                             I.

       William Fox began working for Jackson Township, New Jersey, in 1985. He

served in various positions, including inspector, code enforcement officer, and zoning

officer. In November 1997, the Township Committee appointed Fox to the position of

municipal clerk. His three-year contract in this position expired on November 30, 2000.

       In November 2000, the Township Committee decided not to extend Fox’s term as

municipal clerk. Fox brought suit against the Township Committee and its individual

members alleging violation of federal due process requirements, breach of contract,

detrimental reliance, and other state law claims, averring his contract was not extended

because of his political beliefs. The Township Committee defendants countered that Fox

had failed to adequately perform his responsibilities and that he had started an ongoing

extra-marital affair with a subordinate employee.

       Fox contends the political make-up of the Township Committee is relevant. As of

January 1, 2000, the Township Committee was made up of five members, three


                                             2
Republicans and two Democrats. In March 2000, a special election was held for one of

the Republican seats, and it was won by a Democrat. This shifted the political majority of

the Township Committee into Democratic control, led by Mayor Joseph Grisanti.

       At issue is the Committee’s decision not to reappoint Fox. At trial, the jury found

in favor of all defendants. On appeal, Fox contends the District Court erred in several of

its evidentiary and procedural rulings.

                                              II.

       Fox contends he was denied a fair trial because the District Court improperly

excluded certain evidence. Specifically, Fox cites three rulings as erroneous: (1)

upholding of a claim of privilege by a newspaper reporter; (2) exclusion of common plan

or scheme evidence intended to demonstrate that other Township employees were

terminated because of their political allegiances; (3) failure to give a limiting instruction

with regard to hearsay testimony concerning Fox’s extra-marital affair. We review the

District Court’s rulings for abuse of discretion. Stecyk v. Bell Helicopter Textron, Inc.,

295 F.3d 408, 412 (3d Cir. 2002).

                                              A.

       Fox’s first contention concerns an article in the Ocean County Observer, a local

daily newspaper. The passage at issue reads: “Committeeman Joseph Grisanti, a

Democrat, said yesterday that Fox became Clerk when William A. Santos, a Republican,




                                              3
was Township Administrator and the GOP dominated the [Township] Committee.

Democrats, he said, had no input into Fox’s appointment as Clerk.”

       At trial, Fox sought to introduce the Observer article as an admission by Grisanti

that Fox was terminated because of his affiliation with the Republican Party.

Recognizing that the newspaper article itself would be inadmissible hearsay, Fox

subpoenaed Lois Kaplan, the reporter who wrote the story. Kaplan and the Observer

moved to quash the subpoena and the District Court agreed.

       In Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979), we found a federal

common law privilege for journalists to refuse to be compelled to testify in a civil matter.

The privilege “recognizes society’s interest in protecting the integrity of the news

gathering process, and in ensuring the free flow of information to the public.” In re

Madden, 151 F.3d 125, 128 (3d Cir. 1998).1

       We have imposed a heavy burden on parties wishing to overcome this privilege

and compel a newsperson to testify in a civil matter. Riley, 612 F.2d at 716 (party must

demonstrate the materiality, relevance, and necessity of the information sought). The


   1
    In support, Fox relies, in part, on Branzburg v. Hayes, 408 U.S. 665 (1972), and
Herbert v. Lando, 441 U.S. 153 (1979). In Branzburg, the Court held that requiring
journalists to testify before state or federal grand juries did not abridge their First
Amendment rights. In Herbert, a defamation suit, the Court found no First Amendment
protection for journalists where a plaintiff bore the burden of proving “actual malice.”
       But these cases are inapposite. The Court confined its holding in Branzburg to a
newsperson’s decision to conceal the criminal conduct of a news source. And Herbert
rested on the plaintiff’s high burden of proof. Here, Fox has brought a civil complaint
and he is not required to prove actual malice.

                                             4
moving party must demonstrate: (1) he has made an effort to obtain the information from

other sources; (2) the only access to the information is through the journalist and his

sources; and (3) the information sought is crucial to the claim. United States v. Criden,

633 F.2d 346, 358 (3d Cir. 1980).

       Fox did not meet that burden here. The information contained in the article was

not specific enough to lead the reader to believe the journalist possessed any relevant and

unique information from her conversation with Grisanti. The passage at issue was not a

quotation from Grisanti nor did it rise to the level of an admission, and there is no

evidence the information sought by Fox was crucial to his claim. Indeed, Fox did not

demonstrate that Kaplan had personal knowledge about his failure to be reappointed. We

see no abuse of discretion.2

                                             B.

       Fox alleges the District Court wrongly excluded evidence designed to prove a

pattern and practice of politically-motivated employment decisions. Specifically, Fox

contended the Democratic-controlled Township Committee terminated other Township

employees for political reasons. But the District Court ruled the other employment




   2
    Significantly, the District Court provided Fox with ample opportunity to question
Grisanti about the statement attributed to him in the article. On cross-examination,
Grisanti testified about the statement, and Fox’s counsel repeated the statement in his
closing argument. In short, Fox did not demonstrate the only access to purportedly
crucial information was through Kaplan.

                                              5
decisions were “apples and oranges” compared to the Township Committee’s decision on

Fox.

       At issue is the proffered testimony of William Santos, the former Township

business administrator, and Dane Wells, a former Township confidential investigator.

Fox avers that Santos would have testified that he was terminated from his position

because he is the son of Jackson Republican Club Chair Geneva Clayton. According to

Fox, Santos would have testified as to negative remarks made by Grisanti to both Santos

and Clayton. Wells also would have testified he was removed for political reasons.

       Under Fed. R. Ev. 404(b), evidence of other wrongs or acts is not admissible to

prove the character of a person. Such evidence may only be admissible if it is used for

other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. See Becker v. Arco, 207 F.3d 176

(3d Cir. 2000). As we stated in Becker, evidence of a pattern and practice of wrongs is

admissible only if the evidence reflects a common plan or scheme. Id. at 196.

       Here, Fox attempted to introduce the testimony of Santos and W ells to demonstrate

evidence of other wrongs by Grisanti and the Democratic-controlled Township

Committee. The District Court found Fox failed to demonstrate that Santos’s and Wells’s

testimony fit into an overall scheme by the Township Committee defendants. Moreover,

the District Court noted that Santos and Wells served in confidential positions to the




                                             6
Township Committee, unlike the municipal clerk’s position, and their appointments were

made under a different set of procedures. We see no abuse of discretion.

                                             C.

       Fox contends the District Court wrongly admitted hearsay evidence as to an

alleged extra-marital affair he had with his secretary. In support, Fox cites Fed. R. Ev.

602, which provides: “[a] witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge of the

matter.”

       Fox’s claim fails for two reasons. First, Fox’s counsel elicited testimony regarding

the extra-marital affair during his direct examination of Grisanti. This testimony occurred

prior to the defense’s presentation of its case. Second, Fox acknowledged at his

deposition that he had a sexual relationship with a secretary in the zoning office when he

served as the Township zoning officer.

       On appeal, Fox also contends the District Court should have given the jury a

limiting instruction as to the extra-marital affair. Yet as defense counsel points out, Fox

never objected at trial to the absence of a limiting instruction, even when asked directly

by the District Court as to whether he objected to the proposed charge.3 The District


   3
    In denying plaintiff’s counsel’s motion in limine to exclude the testimony about the
extra-marital affair, the District Court even recommended to counsel that he seek a
limiting instruction if he so desired:

                                                                               (continued...)

                                             7
Court ruled the evidence’s “probative value clearly outweighs any prejudice.” We see no

error.

                                                 III.

          Fox claims the Township Committee violated New Jersey’s Open Meetings Act by

deciding not to reappoint him during a private meeting. He cites the Township

Committee’s contention that it decided to not reappoint Fox by way of informal polling of

the Committee by the Township attorney. Fox claims this informal polling, without

notice to the public or to Fox, violated the Act.4 We exercise plenary review of the

District Court’s conclusion of law. Newell v. Ruiz, 286 F.3d 166, 167 n.2 (3d Cir. 2002).

          N.J.S.A. 10:4-9(a) of the Open Public Meetings Act provides: “Except as

provided by Subsection B of this section, or for any meeting limited only to consideration



   3
       (...continued)
           If counsel would like to seek a limiting instruction at some point, I will
           consider it. But it seems to me that the probative value clearly outweighs
           any prejudice giving [sic] the allegations here and the factors raised by the
           parties. If you want to try and work on a limiting instruction as to what it’s
           offered for and what it’s not offered for, it’s obviously not offered to prove
           that the defendant is a bad person and the like, but it is offered, I assume, as
           . . . one of the bases for the defendant’s decision . . . .

          Fox’s counsel never requested a limiting instruction.
   4
    Fox also asserts the Township Committee violated the Jackson Township
Administrative Code’s procedures relative to removal of Township employees. See
Jackson Twp. Admin. Code § 3-17(b)(2). But these provisions pertain only to the
removal of Township employees. Here, the Township Committee decided to not
reappoint Fox but did not remove him from his term of office. Therefore, the Code’s
provisions are not relevant here.

                                                  8
of items listed in Section 7B no public body shall hold a meeting unless adequate notice

thereof has been provided to the public.”

       At issue is the definition of a “meeting.” Under the Open Public Meetings Act, a

“meeting” is expressly defined as:

       any gathering whether corporeal or by means of communication equipment,
       which is attended by, or open to, all of the members of a public body, held
       with the intent, on the part of the members of the body present, to discuss or
       act as a unit upon the specific public business of that body.

N.J.S.A. 10:4-8(b).

       Fox’s claim fails. The informal polling undertaken by the Township attorney did

not constitute a meeting as defined by the Act. There was no intent to gather or act as a

unit in making a decision on Fox’s status. Instead, the informal polling was in direct

response to Fox’s own request for a status determination so that he could apply for a

reduction in alimony.

       We find the Township Committee’s conduct did not violate the Open Public

Meetings Act.

                                            IV.

       Finally, Fox contends he was entitled to a formal hearing on his reappointment.

According to Fox’s complaint, the Township Committee’s failure to afford him a hearing

was a violation of due process protections to which he was entitled under the United

States Constitution. The District Court found no due process violation and we review de

novo. Smith v. Mensinger, 293 F.3d 641, 647 (3d Cir. 2002).

                                             9
          In order to establish a right to notice and a hearing, a public employee must

demonstrate that he has a property interest in continued public employment. Bd. of

Regents v. Roth, 408 U.S. 564, 577 (1972). To generate a property interest, an employee

must “have a legitimate claim of entitlement” to continued public employment. Id.

          Fox contends he had a legitimate claim of entitlement under federal and New

Jersey law to continued employment as municipal clerk. He claims it is well-settled that

removal of a municipal clerk requires both notice and a hearing.5 But Fox was not

removed from office; he simply was not reappointed at the expiration of his contractual

term. Even assuming he had a property interest in his position, it did not extend beyond

the contractual term.

          As the District Court found, the Supreme Court’s decision in Roth is apposite. In

Roth, an assistant professor’s contractual term of appointment did not generate a property

interest in continued employment. Moreover, the relevant state law did not create such a

property interest. Under both contract and state law, the Court held the professor did not


   5
       Specifically, the statute provides:

                 The removal of a registered Municipal Clerk shall be only upon a
          written complaint setting forth with specificity the charge or charges against
          the Clerk. The complaint shall be filed with the Director and a certified
          copy of the complaint shall be served with the person so charged, with
          notice of a designated hearing date before the Director or the Director’s
          designee, which shall be not less than 30 days nor more than 60 days from
          the date of service of the complaint.

N.J.S.A. 40A:9-133.7(b).

                                               10
have a property interest sufficient to require notice and a hearing when the university

declined to renew his contract of employment.

       Here, we note a similar combination of contract and state law. Fox initially served

under a fixed, three-year term of employment with no express entitlement to continued

employment. Moreover, under New Jersey law, Fox would only be entitled to notice and

a hearing if he was “removed” from his position as municipal clerk. The Township

Committee did not remove him from his position. It chose not to reappoint him. Fox did

not have a property interest in continued employment that would have required notice and

hearing.

                                             V.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            11
TO THE CLERK:

         Please file the foregoing opinion.




                                              Circuit Judge




                                       12
                                     April 25, 2003




TO:           Marcia M. Waldron, Clerk

FROM:         Judge Scirica

RE:           William Fox v. Township of Jackson, et al.
              No. 02-1870
              Submitted: January 9, 2003




Dear Marcy:

            Please file the attached not precedential opinion which has been cleared in
accordance with our procedure. The signed original is being delivered to your office.

                                                Sincerely,




                                                Anthony J. Scirica

AJS:sss

cc (letter only): Judge Barry
                  Judge Smith
