The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For years, I've been writing extensively about criminal harassment laws (see, e.g., this law review article), and filing briefs in criminal harassment cases. But in April, my experience with harassment laws took a different turn—I learned that a criminal harassment case had been filed against me in New Jersey, under N.J. Stats. 2c:33-4(c):
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he … Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
In theory, such a charge could yield up to 30 days in jail.
The criminal summons noted that the complaint had been filed by one Andrew Bonner, and it was based on his assertion that, "to the best of his/her knowledge, information and belief, [Eugene Volokh] … did,"
And as it happens, I was indeed mailing material to Mr. Bonner at his home address. The New Jersey state police did contact me at his behest and told me he didn't want me mailing such material. And I did tell them that I wouldn't stop (though, as you might gather, I also told them why). The facts in his allegations were thus basically correct—so far as they went—though the legal characterization (that the material was "harassing" and "threaten[ed] further cyber-harassment and slander") was not.
Now you might think that, before the charges were filed, the prosecutor would have looked into why I was troubling Mr. Bonner so, and whether I was indeed acting "with purpose to alarm or seriously annoy" and "harass" him (which is what the statute requires).
But it turns out that New Jersey is one of the few states that lets a private complainant start a criminal proceeding without a prosecutor's approval. All that is required is that a person file a complaint, and that it "appear to the judicial officer from the complaint, affidavit, certification or testimony that there is probable cause to believe that an offense was committed, the defendant committed it, and a Complaint-Warrant … or summons can be issued." And as you might gather, the judicial officer seems to generally operate just from the face of the complaint, without any investigation. (Prosecutors, for all that people sometimes complain about them, at least generally do investigate the complainant's accusations a bit before filing charges.)
And what the complaint didn't explain was why I troubled myself with mailing things to Mr. Bonner: Because I was required to do that by Federal Rule of Civil Procedure 5(a)(1), which provides that, generally speaking, any federal court filing "must be served on every party."
As I noted a few days ago in this post ("'Right to Be Forgotten' as to Court Opinions Rejected …"), I had moved to intervene in a case Mr. Bonner had filed, in order to oppose his attempt to seal any court order the court would issue in that case. He had filed the case pro se, so the address in the court files was his home address (and, as best I can tell, he wasn't registered for electronic court filing); I therefore basically had to either personally hand all my filings to him or mail them to him. A prosecutor, I presume, would likely have looked into this—if only by asking Mr. Bonner to show him the offending mailings, which are clearly service copies of court filings. But the judicial officer issuing the criminal complaint did not.
Thankfully, I am fortunate to know New Jersey criminal lawyer Steve Kaflowitz—as it happens, from when I filed amicus briefs supporting his position in a case before the New Jersey Appellate Division and New Jersey Supreme Court (State v. Burkert). That case, as it happens, was a successful First Amendment challenge to an application of … New Jersey's criminal harassment law.
Steve and his colleagues at Caruso Smith Picini, Tim Smith and Wolodymyr Tyshchenko, very kindly agreed to represent me pro bono. (Many, many thanks to them.) Thanks to their help, the prosecutor declined to prosecute—prosecutors in New Jersey have that power, albeit only after a citizen criminal complaint is filed—and the court dismissed the case. Indeed, thanks to their help, I didn't even need to fly out to New Jersey to appear in the case. At the hearing in late June (the transcript of which finally arrived Monday), the judge explained how little it can take in New Jersey to get the criminal charges initially filed:
THE COURT: Judicial officers have to look at probable cause statements or citizen filed complaints dozens of them monthly, if not weekly, and have to make determinations based on the limited amount of information provided and they are asked to do so with taking the complainant's words as 100 percent truthful and, unfortunately, given the limitations of time and resources, a lot—many times they are liberally reviewed and liberally construed and in this case, the probable cause was found.
And the judge also explained the factual reasons why the case had to be dismissed:
THE COURT: … Mr. Bonner, … not only must [Volokh] not stop sending them [i.e., these materials] to you, he is actually required by law to send a copy to you if any correspondence he sends to the Court because you have filed pro se. It is part of the Court Rules that stipulate that any party—any pro se party to an action must be copied so that they are aware of the correspondence, because it would be an unfair prejudice to you if you didn't know what your adversary was doing and you weren't getting notice of that.
If you were an attorney, it would be the same—the same rule would apply. The attorney must be copied any time a letter to the Court is written or a motion is filed or any action is taken in correspondence with the Court. That's part of the fundamental rules of Court and there's nothing that can—nothing that can be done to stop him from copying you on letters that he's addressing to the Court….
[T]he Court would never be able to find harassment given that the only correspondence that you have is legally required correspondence in terms of Mr. Volokh's participation in this—as an amicus in this federal matter.
This statement is slightly imprecise—I was participating as a proposed intervenor, not as an amicus—but otherwise strikes me as quite correct.
So all's well that ends well, again thanks to Messrs. Kaflowitz, Smith, and Tyshchenko; and I should stress that many people have faced wrongful charges that were much more perilous than the petty disorderly conduct charge that I was facing. Still, I thought it was an interesting story, and something of an illustration of how the New Jersey citizen complaint process can go (even if briefly and reversibly) off the rails. I can imagine how someone else in my shoes might have felt, if he didn't know local lawyers who were happy to help, and didn't know enough about the relevant legal rules to be confident that everything would turn out fine.
UPDATE: A reader offers a different perspective on private prosecutions:
The private prosecution practice carries on for two basic reasons:
[First, i]t works as a pressure-relief valve for the folks like your adversary Bonner, who definitely would not have listened to, let alone believed, anyone not wearing a black robe tell them about F.R.Civ.P. 5 and its vexatious mailing requirement. Judge Smith down at City Hall hears his gripe and, from atop his high bench, explains "you got no reason to complain, so stop." The black robe does it.
Second, it's a way around the mostly-former (but still extant) tendency of prosecutors and cops to look the other way when their cousin/brother-in-law/bookie* was causing trouble to some prole lacking political suck, and said prole decided to complain only to find official indolence provided no relief. In other words, it's another relief valve to mollify the one-sidedness of Jersey Justice.
And I suspect that notwithstanding the occasional misuses, it will continue. It comes up for reform every 2 years (the Supreme Court's committee to change the rules issues their changes every other year, right about this time of year) and maunders on….
*Or guy with a courtesy plate or, worse, crests on his plates. What, you never heard of "courtesy plates"? Quick way for the cop stopping someone for a traffic violation to decide it's time for a warning only, or to determine fault in the accident before interviewing any witnesses (https://en.wikipedia.org/wiki/Vehicle_registration_plates_of_New_Jersey#Courtesy_plates). The lower your number, the more suck you have.
If you have a gold-plated bas relief reproduction of the state seal between the letters and numbers of your courtesy plate, you're a real player and you really have to be over the line for cops to mess with you.