2ND Quarter 2014 www.aclu-nj.org

Keeping Safe and Free — Since 1960 Civil Liberties Reporter

ACLU-NJ Sues Seven School Districts ACLU-NJ Calls for Discriminatory Enrollment Policies on State to Adopt Lawsuits targeted worst offenders among 136 non-compliant districts Recommendations or more than 30 years, courts have forbidden school F districts from discriminating against students based on Bail Reform on immigration status. In New Jersey, districts may only require parents or guardians to submit proof of the efendants who languish for months in jail child’s age and in-district residency, and nothing more, D because they cannot afford to post bail for to enroll their children in a local public school. low-level offenses are often the poorest in the However, upon examining the policies of 600-plus state, according to a report issued by a state school districts statewide in March, the ACLU-NJ found committee assembled to study bail reform in that 136 required photo identification or imposed other New Jersey. Low-income communities of color impermissible barriers to enrollment. In many cases, disproportionately bear the impact of our current such restrictions discourage undocumented parents from bail system, which largely determines whether registering their children for school. On April 3, the ACLU- people will await trial in jail or freedom based on their finances rather than the risks they pose. The report, issued in March, called on the “Schools must not erect barriers that state to make a series of reforms that would both expedite the trial process and allow judges discriminate against immigrant to make decisions about detention and release families and prevent children from based on the threat a defendant poses to the districts imposed policies that not only ignored clearly public rather than a defendant’s ability to pay. receiving the education they’re established law, but worse, discriminated.” ACLU-NJ Senior Staff Attorney Alexander Shalom entitled to by law.” But some didn’t heed the ACLU-NJ’s warnings, and on was a member of the Joint Committee on Criminal — Udi Ofer June 2, the ACLU-NJ filed seven lawsuits against school Justice, which made the recommendations. Chief ACLU-NJ Executive Director districts with the most restrictive enrollment policies. Justice established the committee Within a week of our filings, all seven districts came of judges, attorneys and experts in June 2013 to into compliance with the law. focus on issues relating to bail and the delays in NJ sent letters to the offending districts, explaining that “Schools must not erect barriers that discriminate bringing criminal cases to trial. they must rescind their policies or face potential legal against immigrant families and prevent children from “Prosecutors, defense attorneys, civil action. More than 100 districts fixed their policies after receiving the education they’re entitled to by law,” said libertarians, judges and court administrators receiving the ACLU-NJ’s letter. ACLU-NJ Executive Director Udi Ofer. “The ACLU of New have joined voices with representatives of the “Time and again, courts have ruled that in a Jersey will not rest until all children in New Jersey are legislative and executive branches to say that the democratic society, the doors of public schools must treated equally, regardless of their immigration status.” current system of bail and detention promotes be open for all children who live here,” said ACLU- View the list of school districts at www.aclu-nj.org/ neither justice nor public safety,” said Shalom. NJ Senior Staff Attorney Alexander Shalom. “These idpolicies Continued on page 3

State Attorney General Orders Police to Stop Photographing Protesters at Christie Town Hall ess than an hour after the ACLU-NJ issued L a statement criticizing the State Police for photographing protesters at Gov. Chris Christie’s town hall meetings, the acting state Attorney General ordered the State Police to stop the practice. On March 13, at a town hall-style event in Mount Laurel, a group of demonstrators disrupted the governor’s remarks to ask about the shutdown of the George Washington Bridge. When protesters showed up at a town hall event in South River five days later, on March 18, to ask for transparency on distribution of Sandy aid, the state introduced a new tactic: taking photographs of the vocal dissenters. The photographer identified himself to a reporter as a member of the State Police. The ACLU-NJ issued a public statement criticizing the practice, as did Senate Majority Leader , who quickly called on Governor Christie to repudiate the tactic. Less than an hour after the ACLU-NJ released its statement on March 19, the acting Out in the Street state Attorney General John Hoffman, along with State Police Superintendent Rick Fuentes, ordered the at Asbury Park Pride State Police to stop photographing protesters. “New Jerseyans must be able to express their ACLU-NJ staff, volunteers and friends, pictured above, stride with viewpoints without having to fear police officers pride at the Asbury Park Pride Parade on June 1, 2014. Honorary photographing them and creating political dossiers,” mascot for the day, Neko, pictured right, comes out to greet said ACLU-NJ Executive Director Udi Ofer. “It raises adoring fans. serious First Amendment concerns that the State Continued on page 2 ACLU-NJ Civil Liberties Reporter n 2nd Quarter 2014

A Civil Debate on Civil Rights Librarians Recognize ACLU-NJ’s Open Government Advocacy with Watchdog Award and Liberties ALA’s Eileen Cooke Award recognizes ACLU-NJ’s state-level advocacy for transparency n March 14, Freedom of Information Day, the American Library Association O (ALA), a longtime ally of the ACLU in fighting for transparency and against censorship, honored the ACLU-NJ for its open governance advocacy. The Eileen Cooke Award gives national recognition to advocates at the state level leading the fight for public policy that advances the public’s right to know. The awards ceremony took place at the Newseum in Washington, D.C. “The recognition of our open government work from the American Library Association, one of the most passionate, most effective defenders of the public’s right to know, comes as an enormous honor,” said ACLU-NJ Legal Director Edward Barocas. “The ALA and the ACLU have both worked not only to protect the public’s right to know, The ACLU-NJ hosted a forum where candidates for New Jersey’s 12th Congressional but also to fight against government District, Upendra Chivukula, Alieta Eck, Linda Greenstein, Bonnie Watson Coleman surveillance and censorship. We at the and Andrew Zwicker, from left to right, debated New Jersey’s most pressing civil ACLU-NJ hope that our future efforts to liberties concerns. NJTV Anchor and Managing Editor Mike Schneider, pictured far strengthen the role of public participation right, moderated the May 1 event held at the Unitarian Universalist Congregation continue to uphold the ALA’s legacy of of Princeton. securing accountability and transparency.” Since its beginning in 2009, the ACLU-NJ’s Open Governance Project has distinguished itself as a leading government watchdog in New Jersey. The project’s victories have given the Police Photos public greater access to records and public meetings, including in one case Continued from page 1 concerning Mark Zuckerberg’s $100 million pledge to Newark’s schools. The Open Governance Project’s work in Trenton has resulted in policy changes, Police may be photographing protesters at Gov. Christie’s town hall meetings.” including passage of a bill lowering fees required from members of the public The administration said that it did not condone the monitoring of activists, for copies of government records. Most recently, the ACLU-NJ issued a call for which was apparently conducted by members of the State Police. The ACLU-NJ more transparency at the Port Authority and in the Christie administration in the also called on the State Police to destroy existing photos of protesters it had wake of the Bridgegate scandal. taken at previous town halls. The ACLU-NJ pressed for more details about the extent of the recording of demonstrators.

Legislative Corner

enate Majority Leader Loretta Weinberg has ACLU-NJ: Government transparency has received more S been a member of the since attention in the wake of the George Washington 2005, representing the 37th legislative district Bridge incident. Why is open government so in Bergen County. The ACLU-NJ has worked with important in New Jersey? Senator Weinberg on a number of critical civil rights I have fought for years for good government measures, and liberties issues, such as marriage equality and including at the Port Authority of New York and New Jersey government transparency. — long before the lane closure ordeal. The Port Authority is a clear example of government operating in the shadows. When the agency recently raised tolls, the board ACLU-NJ: What is the civil rights/civil liberties of commissioners did it in a way that did not include accomplishment you’re proudest of in your career? I have dedicated my career to fighting for those “Secrecy anywhere in public affairs is dangerous. It without a voice and working to correct injustices. fosters the risk of corruption and wrongdoing, and Most recently my decades-long advocacy for undermines the faith of the public in government. marriage equality culminated with the Superior Court decision that allowed same-sex couples to marry in Shining a light on government is vital to holding New Jersey. I was the prime sponsor of a 2004 law public officials accountable and to building and that established domestic partnerships in New Jersey. maintaining the public’s trust.” The law afforded same-sex couples hospital visitation rights and the ability to make health care decisions for their loved one; it also allowed the partners New Jersey Senate Majority Leader Loretta Weinberg adequate input from the public or sufficient information for of state workers to receive health and certain commuters. Hearings were held on only one day with little retirement benefits. These changes were a small victory, but an important step notice, and at locations and times that made it difficult for interested residents to on the road to true equality for same-sex couples. attend. And when I, along with others, challenged the agency, we got less than a satisfactory response. I sponsored a bill along with my colleague from Bergen ACLU-NJ: What is your top civil rights/liberties priority for this County, Senator Bob Gordon, to improve transparency at the authority and, sadly, legislative session? the governor vetoed the legislation. I am fighting to make sure there is transparency and openness in government. Secrecy anywhere in public affairs is dangerous. It fosters the risk of corruption My legislation would revise New Jersey’s key open government laws to bring and wrongdoing, and undermines the faith of the public in government. Shining a them into the 21st Century. The Sunshine Law was written in 1973; by way of light on government is vital to holding public officials accountable and to building contrast, the Internet hadn’t even been named until 1974. The Open Public and maintaining the public’s trust. Records Act was adopted more than a decade ago, before smart phones had gained widespread use. ACLU-NJ: What’s one place ACLU supporters should visit in your district? This effort would modernize New Jersey’s open government laws to reflect The George Washington Bridge entrance in Fort Lee. I believe the incident that new technologies and newer forms of communication. It would ensure that occurred at the bridge will be the impetus for reforms that will help shape notice and details of public meetings are accessible to residents online, and improved accountability standards for public authorities in the state that will that government records are more readily accessible for inspection, copying, benefit residents for years to come. or examination by those seeking information. These changes would ensure the public is able to access important information about how their money is being ACLU-NJ: What are three words you’d use to describe the ACLU? spent and with whom their elected officials meet. Tenacious. Unwavering. Truth.

2 For ACLU-NJ News Updates & Case Reports: www.aclu-nj.org ACLU-NJ Civil Liberties Reporter n 2nd Quarter 2014

Guest Op-Ed:

By Bruce S. Rosen In Memoriam: Rubin “Hurricane” Carter Member of ACLU-NJ Board of Trustees and ACLU-NJ Cooperating Attorney

n the summer of 1985, I was offered an Today it is even more difficult. decision was about whether his second trial was I opportunity to work with U.S. District Court Judge By the time I started working on the opinion, Judge constitutional. Many of the rights outlined in the H. Lee Sarokin, who was seeking a temporary law Sarokin had read much of the material and knew how Constitution and the Bill of Rights were designed to clerk to assist him in drafting an opinion in the case he intended to rule on each count. My job was to draft ensure that people accused of crimes would have a of Rubin “Hurricane” Carter. At the time, I was in my the opinion by sifting through thousands of pages of fair opportunity to respond and that the government final year as a night student at Seton Hall Law School briefing and trial transcripts. I began to dig in — a task had to bear the burden of proving guilt beyond a in Newark. By day, I worked as a courts reporter for that would take me more than two months. reasonable doubt. The Record and had gotten to know Judge Sarokin, a The decision found prosecutors had “fatally infected Unfortunately, as legal scholar and journalist Lincoln courageous, thoughtful and warm judge, through my the trial” and Carter’s rights to due process were Caplan wrote last year in The American Prospect, one work as a journalist. violated. His convictions were based on “an appeal to of those key protections, the writ, “has withered and Carter, a middleweight champion boxer from racism rather than reason, concealment rather than is in a shabby state.” Since Judge Sarokin granted Paterson, had been tried and convicted twice for a disclosure.” Even so, under the law, prosecutors would the writ in the Carter case, it has become virtually triple homicide in 1966. At the time of his release, have the option of trying him a third time; the opinion unrecognizable and certainly far more difficult his incarceration had lasted 19 years. He appealed implored prosecutors not to do so. because of procedural hurdles put into place by his conviction to the New Jersey Supreme Court, but Unlike the Hollywood film “The Hurricane,” the Congress and the Supreme Court. The radical cutback, lost. In applying for a “writ” of habeas corpus, which decision was not read from the bench. I handed Caplan noted, in habeas law has eliminated the writ literally means “may you produce the body,” Carter the thick decision to Ed Graves, one of Carter’s lead as a reliable means of challenging unconstitutional sought the protection of our justice system’s last attorneys, in the hallway outside chambers and said sentences, especially death sentences. bulwark against unjust court proceedings. Habeas only, “Congratulations.” Prosecutors sent a detective to Carter was lucky to have someone like Judge corpus review is regarded as one of the fundamental pick up a copy only after they received press inquiries. Sarokin who was willing to take the time and effort components of the American criminal justice In the years since, many people have criticized the to focus on his case at a time when the law was still system. While a habeas filing was almost routine decision directly. People used to ask me whether I sufficiently broad. Had Carter’s habeas application for defendants with death sentences or long prison thought Carter was innocent. But innocence wasn’t come 10 years later and before a different judge, terms, it was rarely granted. what the decision was all about. Judge Sarokin’s there would likely have been a different result.

Bail Reform Continued from page 1 “These seemingly strange bedfellows all recognize that a system where hundreds of people are jailed because they don’t have a few hundred dollars to post bail unfairly incarcerates the poorest among us, not the most dangerous among us.” According to the report, about 12 percent of New Jersey’s county jail population remained in custody because defendants could not post bail of $2,500 or less. While defendants have a right to a speedy trial under the Sixth Amendment, in many cases that right is not protected under the current system of pretrial justice. As a result, poor defendants often spend more time in jail because they cannot afford to produce even minimal bail funds. A poor defendant charged with a low-level drug offense might spend a year or more in jail waiting for a trial. The ACLU-NJ participated as amicus curiae in a case where a defendant charged with murder spent more than four years in jail before trial. The ACLU-NJ is working with lawmakers to adopt the committee’s recommendation and to pass comprehen- sive bail reform with speedy trial protections.

ACLU-NJ Urges NFL, Jets and Giants to Respect LGBT Rights

niversity of Missouri football player Michael Sam made history in February of…what your sexual U when he announced publicly that he is gay. Sam, who was drafted by the orientation is, if you are good St. Louis Rams in May, is the first openly gay player in the NFL. enough to be on the team, Days after his announcement, the ACLU-NJ sent a letter to the Giants, Jets you are part of the family.” and NFL to remind the organizations that they must comply with the state’s With its letter, the ACLU-NJ Law Against Discrimination when it comes to drafting players. One news sought to emphasize the outlet, SI.com, quoted unnamed general managers saying they would not full implications of the draft Sam because he is gay. Law Against Discrimination The ACLU-NJ letter highlighted that employers who provide services in the with regard to potentially State of New Jersey — such as the Jets and Giants — cannot judge people on drafting Sam. their sexual orientation and On Feb. 26, the New York doing so would violate the Jets responded directly to the ACLU-NJ letter, reaffirming its commitment to New Jersey Law Against equality and welcoming anyone who can contribute to the team’s success on Discrimination. and off the field. “In that regard, we wish Michael Sam, and every other draft- Reassuringly, just days eligible player, all the best as they attempt to pursue their dream of playing before the ACLU-NJ sent in the NFL,” wrote Hymie Elhai, Vice President, Business Affairs & General its letter, Giants chairman Counsel for the New York Jets. Steve Tisch released a On March 14, Robert Gulliver, Chief Human Relations Officer at the NFL also statement in support of responded directly to the ACLU-NJ letter writing that the NFL stands “for a Sam saying, “Regardless workplace that is free of workplace discrimination.”

Find the ACLU-NJ on Facebook: www.facebook.com/aclunj and Twitter: www.twitter.com/aclunj 3 ACLU-NJ Civil Liberties Reporter n 2nd Quarter 2014

Face of Liberty Tributes Justice Virginia Long

In Memory of Puneet Bhandari n March 25, the ACLU-NJ honored retired Justice Virginia Long with the Roger N. Dr. Narendra Bhandari O Baldwin Award for her contributions to protecting civil liberties and civil rights in New Jersey. Justice Long served on the New Jersey Supreme Court from 1999 to 2012. In Memory of Michael Christofides Justice Long roused the audience with sharp commentary on the need for judicial independence. Here are a few highlights of her remarks: Gayle Duras “The judges are under terrific onslaught today as never before. Indeed the principle that pervaded the reappointment scheme since 1947, that a judge who lived up to his In Memory of Emil Oxfeld oath and accounted for his stewardship would be re-nominated and that the substance of his decisions would never be used against him, has been crushed. In its place is Edith Oxfeld unbridled political rhetoric about activist judges and, worse, action based on that rhetoric. And the tragedy is that the vast majority of our citizens either do not know, do not In Memory of Stephen Mallard care, or wrongly equate judicial intervention with anti-democratic overstepping. To be sure, we are a representative form of government. Yet when another branch trenches Debra Aniano on the Constitutional rights of our fellow citizens — it is not, it is not unwarranted judicial activism for the court to step in — it is a core judicial function that our founding fathers intended for us to exercise….As a practical matter, lawyers will take the lead, but they cannot do Tributes are contributions made to honor or remember special friends, family, it alone. The same obligations colleagues and occasions. “We need to know, each one of us, devolve on private citizens who To have your tribute appear in the Civil Liberties Reporter, please contact the ACLU-NJ that when we go to court to vindicate know, or should know, that an independent judiciary is the office at: 973-642-2086 or P.O. Box 32159, Newark, NJ 07102. our rights against a powerful or refuge of the weak and the poor; wealthy adversary the playing field the safe harbor for unpopular ideas; and the very last line of will be level and that the judge will defense against tyrants. not be looking over his shoulder.” Each one of us at some time in Civil Liberties Reporter our lives has the potential to fall The ACLU-NJ and the following volunteers contributed to this issue of the Civil — sometimes far — to be among Liberties Reporter: Peggy Brooks and Jay Gartman. those souls who are powerless, or even despised. The only question is whether an independent judiciary will be there as our bulwark. Photo credit for Asbury Park Pride, the candidate’s forum, and Justice Virginia Long: We need to know, each one of us, that when we go to court to vindicate our rights Amanda Brown against a powerful or wealthy adversary the playing field will be level and that the judge will not be looking over his shoulder…And it falls to us to protect and defend Published Winter, Spring, Summer and Fall by the American Civil Liberties Union of the judiciary, our most precious commodity, against government threats and unjust New Jersey, P.O. Box 32159, Newark, NJ 07102 public pressure. We do this, not for the benefit of the judges but for ourselves and for 973-642-2084 n [email protected] n www.aclu-nj.org those who come after us.” ISSN: 0009-7934

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Gov. Christie Receives a D+ in Civil Rights and Civil Liberties Four years in office make for an overall poor record on civil rights and liberties

he ACLU-NJ has given Gov. Chris Christie a D+ for his overall record on civil T liberties and civil rights during his first term in office. The ACLU-NJ examined New Jersey Report Card the governor’s record in 12 issue areas and gave him his lowest marks in the areas of separation of church and state, transparency, separation of powers, and Nam e : Gov. Chris Christie economic justice. He earned his highest mark in freedom of religion. T e r m : January 2010 – January 2014 The report card examines the Christie administration from January 19,

S u b j e c t 2010, when Gov. Christie was sworn into office, to January 20, 2014, when G r a d e his first term ended. Freedom of Expression C- “Gov. Christie’s overall record on civil liberties and civil rights has been Freedom of Religion B Separation of Church and State poor, ranging mostly from mediocre to failing,” said ACLU-NJ Executive F Voting Rights Director Udi Ofer. “His first term will be remembered for its assaults on B- Women’s Rights judicial independence and on the separation of church and state, as well as C Immigrants’ Rights C+ for its disdain for transparency. Some of Governor Christie’s most frustrating Privacy civil liberties moments have occurred when he has failed to back up bold C- LGBT Rights D words with substantive actions, such as in the areas of LGBT rights and the Criminal Justice & Drug Policy C failed war on drugs.” Transparency F Read the report at: www.aclu-nj.org/gradechristie Separation of Powers F Economic Justice F A Report by the #GradeChristie American Civil Liberties Union A v e r a g e : D+ of New Jersey