BENNET D.

ZUROFSKY
Attorney at Law

17 Academy Street - Suite 1010 Newark, New Jersey 07102

_________________________

973-642-0885
Fax: 973-642-0946 bzurofsky@zurofskylaw.com December 16, 2011 By mail and email to valentina.dipippo@judiciary.state.nj.us Hon. Mary C. Jacobson, P.J. Superior Court - Chancery Division 210 South Broad Street, 5th Floor P.O. Box 8068 Trenton, New Jersey 08650 Re: Occupy Trenton and Alexander Higgins v. Raymond Zawacki, et. al, Docket No. C-72-11 (Preliminary Injunction Hearing - December 19,2011) Dear Judge Jacobson, Please accept this letter in lieu of a more formal reply brief in support of the Plaintiffs application for a preliminary injunction. Please also accept this letter as motion to convert the preliminary injunction hearing into a final hearing on this matter, as it appears from the defendants papers that there is little, if any, factual dispute between the parties and that no further hearings will be necessary for a final resolution of the Complaint herein and the entry of a final injunction. This Court has already determined in its November 7, 2011, Statement of Reasons that formal rule-making was required for defendants to impose the prohibitions and restrictions contained in the Zawacki letter. This Court also held that defendants failed to properly engage in the required rule-making. As explained in plaintiffs December 2, 2011, letter brief, that failure inures to the prohibition on temporary structures and generators, just as it does to the prohibition on picnicking items. Mandatory requirements of the Administrative Procedures Act cannot simply be cast aside because the State is uncomfortable with the result. The State has now instituted formal rule-making but, until the time that such rules are passed, neither the State nor this court can impose impermissible restrictions and prohibitions on citizens activities.

Hon. Mary C. Jacobson Re: Occupy Trenton December 16, 2011 Page 2 Defendants papers make it clear that they are no longer challenging any of the restraints contained in your temporary restraining order of November 7, 2011. Thus, the only matter left to be decided is the plaintiffs request that this Court prohibit all further enforcement of the few provisions of the Zawacki letter that its November 7 Order permitted the defendants to continue to enforce, namely the prohibitions of the use of temporary structures (including tents and canopies) and the use of a gas generator. In arguing in support of those prohibitions, the defendants rely almost entirely on in terrorem argument based upon a parade of imagined horrors that are completely unsupported by any facts. None of their imagined horrors withstand scrutiny. In particular, all of their claimed fears are equally if not more applicable to the many cars that are parked and driven in the immediate vicinity of the State House 24 hours a day, seven days a week. These cars are permitted to be parked and driven closer to the State House than the Occupy Trenton demonstration is, as State Street runs between the State House and Veterans Park. Indeed, it would certainly be easier to conceal weapons or explosive devices in an automobile than it would be to bring those items into an open-sided tent erected in Veterans Park, an area that the State Police appear to keep under their watchful eyes 24 hours a day, every day. In fact, if such in terrorem argument based solely on conjuring up the farthest-reaching potential horrible usage of an item were accepted, the State would also be able to ban anyone walking on State House grounds or the sidewalks nearby from having briefcases, book bags, pocketbooks, electronic devices, or even baggy clothing. Further, cars run on the same basic internal combustion engine as the generator that the occupiers seek to use, and car trunks not infrequently carry cans of gasoline (whereas plaintiffs have stored their gasoline off-site). Clearly, the State is not seeking to ban cars from parking near the State House nor from driving down State Street. There is absolutely no evidence that Occupy Trentons temporary structures and generators pose any greater danger to public safety than those cars do. In fact, the State acknowledges that generators and temporary structures are allowed on the State House grounds, subject to the requirements of the permit system that is enforced on those grounds. Thus, it is plain that there is no inherent danger in the presence of such things so close to the State House.1

The defendants have declined offers from plaintiffs counsel to negotiate terms (such as might be applicable to permit-holders) for the use of temporary structures and generators in Veterans Park.

Hon. Mary C. Jacobson Re: Occupy Trenton December 16, 2011 Page 3 The defendants only fact-based complaints about the demonstrators seem to be with their housekeeping and the impact their presence is claimed to have upon the esthetics of the World War 2 Memorial. Even those Complaints are stale. Lieutenant Finnerans affidavit is the only new evidence presented to the Court regarding the demonstrators behavior by defendants papers. It reports no facts subsequent to October 14, 2011, the date the Occupy Trenton property was unconstitutionally seized by the State Police, i.e., nothing whatsoever since before this matter was opened to the Court for consideration. Indeed, there is absolutely no evidence that the demonstrators have broken a single law, or even been rude to anyone! The Plaintiffs will present evidence at the hearing that, since our last appearance in this court, they have safely operated a generator on the Trenton City sidewalk adjacent to Veterans Park, using a power cord (taped to the pavement) to bring the electricity to their equipment in the park. The gasoline is stored off-site and is brought to the generator only as needed by the demonstrators to re-fill the generators gas tank. All of this was worked out in consultation with the appropriate Trenton officials to address safety concerns. The generator is, if anything, closer to the State House than it was when it was being operated in Veterans Park. It is also much closer to some of the row houses adjacent to the park than when it was in the park, because Trentons officials asked that it be placed on the building side of the sidewalk rather than on the street side. In other words, the defendants are asking this Court to enforce a restriction on the use of generators and gasoline that is completely meaningless in terms of public safety. All that the defendants restriction accomplishes is making it a little more difficult for the demonstrators to operate (and a little more dangerous for pedestrians in Veterans Park who have to step over the power cord). This plainly reveals the defendants true motive, which is to discourage plaintiffs speech. The defendants underlying hostility to Plaintiffs speech is also revealed by their continued insistence that the use of generators and temporary structures has nothing to do with plaintiffs message and the exercise of free speech and assembly. As the plaintiffs primary use of the electricity is to power their electronic communications equipment, the defendants argument is no different from saying that interfering with a newspapers ability to operate its printing press would not affect the newspapers freedom of speech. The fact that much of plaintiffs communication is in

Hon. Mary C. Jacobson Re: Occupy Trenton December 16, 2011 Page 4 the virtual realm hardly changes the fact that it is speech protected by the New Jersey Constitution. The use of temporary structures is also an essential part of the plaintiffs communication. As Alexander Higgins essay makes clear, a major part of Occupy Trentons message is that it is there to stay. It is occupying Veterans Park the same way that an Army occupies an area. It is staying until conditions change enough so that its mission is accomplished. The use of temporary structures as protection against the elements is obviously important to the plaintiffs ability to communicate this part of their message. Moreover, the presence of the temporary structures directly communicates to all who see them that these demonstrators are there to stay, that they are not a temporary phenomenon. The use of temporary structures directly communicates that these demonstrators are not the sunshine soldier and summer patriot [who] will, in this crisis, shrink from the service of their country. T. Paine, The Crisis, No. 1 (1776). The defendants argue that the use of temporary structures is tantamount to turning Veterans Park into a campground. This is again a statement of defendants fears, unsupported by any facts. The plaintiffs have never sought to camp out in Veterans Park. As the Verified Complaint makes clear, all that plaintiffs have ever sought to do is to maintain a vigil across the street from the State House 24 hours a day, seven days a week, 365 days of the year. Indeed, to the extent Occupy Trenton wished to maintain a campground in Trenton, it obtained a permit to do so in a Trenton Park on Warren Street, near the Revolutionary War Monument.2 From the outset of these proceedings, Occupy Trenton has only sought to use open tents or canopies as shelter from the elements. The evidence from Timothy ONeill of NJCAN demonstrated that the State had authorized the use of such temporary structures in Veterans Park without hesitation prior to the commencement of Occupy Trenton. The only difference between the temporary structures that NJCAN was told it was allowed to use and Occupy Trentons temporary structures is that Occupy Trenton is staying in Veterans Park for a longer period of time. That difference is completely immaterial to any question of inherent danger or interference with others use of the Park.

The permit for the use of that park for camping expired a few days ago and Occupy Trenton chose not to renew it, although it is counsels understanding that Trenton was willing to issue a further permit.

Hon. Mary C. Jacobson Re: Occupy Trenton December 16, 2011 Page 5 Occupy Trenton has now been in Veterans Park for more than two months. The demonstrators have behaved lawfully at all times. The defendants have not presented any evidence of even a single instance where Occupy Trenton has interfered with any other persons use of the park or obstructed visitors to the World War 2 Memorial in any way. There is simply no reason for this Court to issue an injunction that will have the effect of regulating the activity of Occupy Trenton by anything other than what existing laws and regulations require. It is, after all, plain from the record that the defendants failed to comply with the Constitutional and statutory requirements for issuing an enforceable administrative rule when the Zawacki letter was written. The fact that the Director of the Division of Property Management and Construction of the New Jersey Department of the Treasury subsequently approve[d] and endorse[d] the Zawacki letter does nothing to render the manner of its promulgation (specifically, the failure to abide by the Administrative Procedure Act) any more lawful. At most, this informal approval possibly demonstrates that the governmental authority that may actually have the power to issue such a regulation thinks that some of the rules in the Zawacki letter are a good idea. Accordingly, that agency has now formally proposed new rules, which have not yet even been published in the New Jersey Register, that are based on the Zawacki letter. The statutory process will now take its course and someday those rules may go into effect. Until then, they are nothing but a proposal and they are unenforceable in this Court or in any other forum. Bd. Of Educ. v. Cooperman, 209 N.J. Super. 174, 210 (App. Div. 1986); Statement of Reasons, slip opinion p. 30 (Nov. 7, 2011). The Defendants argument against this Courts holding that formal rulemaking is required for the matters addressed in the Zawacki letter by virtue of the Supreme Courts decision in Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313 (1984), is completely unpersuasive. The States power to engage in informal administrative action ends where its obligation to engage in formal administrative action begins. Metromedia sets forth the judicial test for determining whether formal administrative action is required. This Courts Statement of Reasons properly analyzed the question and concluded that formal rulemaking is required here. And as explained in plaintiffs previous briefs to this Court, past and current State practice evidences the States recognition that the use of temporary structures, tents and gas-powered items are matters about which formal rule-making is required. Deborah Heart & Lung Center v. Howard, 404 N.J. Super. 491 (App. Div. 2009), the only case cited by the defendants in support

Hon. Mary C. Jacobson Re: Occupy Trenton December 16, 2011 Page 6 of their informal agency action argument, does not in any way stand for a different analysis from what is set forth in Metromedia. Deborah simply held that the State need not go through formal rulemaking in order to make technical changes in the way it gathers information and publishes its findings. No new restrictions were placed upon any individuals or any corporations conduct, nor were any new reporting requirements imposed. All that was involved in Deborah was a change in the questions asked and the way that the information obtained was analyzed. Moreover, in Deborah, all concerned were given a great deal more notice and opportunity to participate in the process before the changes went into effect than the defendants provided here before issuing the Zawacki letter. In sum, all enforcement of every term of the Zawacki letter must be enjoined as a legal matter because there has been no compliance with the requirements of the Administrative Procedure Act or the New Jersey Constitution and as an equitable matter because the defendants have utterly failed to make the showing that is required for the entry of an injunction. Accordingly, plaintiffs ask this Court to issue a final judgment declaring the Zawacki letter null and void and enjoining the defendants from all enforcement of any of the provisions of the Zawacki letter. Respectfully submitted, /s/ Bennet D. Zurofsky BENNET D. ZUROFSKY cc: Kevin Jesperson, AAG email only: Robert Lougy, AAG Edward Barocas, Esq. David Perry Davis, Esq.