Besler v. Board of Education of West Windsor-Plainsboro Regional School District, A-81 September Term 2008; Supreme Court; opinion by Albin, J.; partial dissent by Rivera-Soto, J.; decided May 17, 2010. On certification to the Appellate Division. [Sat below: Judges Cuff, Lisa and Simonelli in the Appellate Division; Judge Sapp-Peterson in the Law Division.] DDS No. 16-1-7897 [90 pp.]

During the public-comment period of a meeting of the Board of Education of the West Windsor-Plainsboro Regional School District, the board president, Dr. Lester Bynum, denied plaintiff Philip Besler the opportunity to complete a statement critical of both board policy and a high school coach he believed had verbally abused student-athletes, including his daughter.

Besler filed a federal civil rights claim pursuant to 42 U.S.C. § 1983, alleging that he was entitled to express his grievances at the meeting — a public forum — and that the board violated his free-speech rights guaranteed by the First Amendment. A jury found that the board did not have a “compelling” reason to justify silencing Besler and awarded him monetary damages of $100,000.

The Appellate Division affirmed the trial court’s ruling that there was sufficient evidence to present Mr. Besler’s First Amendment claim to the jury. The panel found the “critical issue” to be whether the board’s restriction on Besler’s speech was content-based or content-neutral. In sustaining the verdict, the panel held that the board president’s motivation in gaveling down Besler was a question of fact to be decided by the jury. The panel also held that there was sufficient evidence to hold the board directly liable for a First Amendment violation under Monell v. Department of Social Services . The panel did not address the board’s argument that the $100,000 pain-and-suffering damages award was excessive.

In this appeal, the board contends that the singular actions of its board president did not make it liable for any claimed First Amendment violation under 42 U.S.C. § 1983. The board also argues that the evidence at trial was insufficient to support the jury’s verdict. The board maintains that the evidence showed that it was enforcing a content-neutral policy of curtailing repetitive remarks for the purpose of conducting an orderly public meeting. Last, the board urges that the damages award was excessive.

The Supreme Court granted the board of education’s cross-petition for certification.

Held: For purposes of 42 U.S.C. § 1983, the board of education president was acting as a final policy-maker while presiding over the public-comment period of the board meeting and therefore the board could be held liable for a violation of plaintiff’s First Amendment rights. In addition, Besler presented sufficient evidence for the jury to determine that the board silenced him for no reason other than the unpopular viewpoint he expressed, in violation of his free-speech rights. However, Besler offered minimal evidence of emotional distress and the damages award is so clearly excessive that it constitutes a miscarriage of justice.

In Monell , the U.S. Supreme Court determined that, under 42 U.S.C. § 1983, a municipality or school board can be held liable for acts committed by one of its employees or agents, pursuant to a government policy or custom, that violate the Constitution, including the acts of an official who is “responsible for establishing final government policy respecting [the questioned] activity.” Determining whether a person is a final policy-maker is a question of law for the trial court. It is then for the jury to decide whether that individual’s decision caused the deprivation of the right at issue. The Supreme Court finds the Appellate Division misapprehended the Monell standard. The issue is not whether “the evidence indicated the Board had a policy permitting free speech for a limited period at each Board meeting.” Rather, the issue is whether the board’s practice, custom or policy, or the action of its final policy-maker, is the moving force that causes a violation of a constitutional right. The Court concludes that Dr. Bynum was the final policy-maker for the board of education during the public-comment period.

The evidence viewed in the light most favorable to Besler is that Dr. Bynum gaveled him down at the meeting because he was attempting to expose the hypocrisy between the board’s strategic plan, which did “not tolerate behavior which diminishes the dignity, self-worth, or safety of any individual,” and the board’s condoning foul-mouthed, abusive coaches who belittled and demeaned student-athletes. The jury was free to find that Dr. Bynum’s warning comments, evidently directed at Besler, revealed impatience and antagonism toward a viewpoint he did not want to hear. The jury determined that Dr. Bynum’s motivation was not content-neutral, rejecting his claim that he silenced Besler because of the repetitiveness of his remarks or for the purpose of conducting an “orderly and efficient” meeting. The Court concludes that the jury rendered a verdict that is sustainable on the evidence.

Emotional distress can constitute an actual injury under § 1983. However, Besler offered no testimony on the depth or degree of his emotional distress or suffering. Compensatory damages for emotional distress, in the amount awarded here, must be based on more than de minimis mental anguish, or fleeting embarrassment, or mere shock and bewilderment. The Court concludes that the $100,000 damages award is so clearly excessive that it constitutes “a miscarriage of justice.”

The Court affirms that part of the Appellate Division’s judgment that upheld the jury’s finding that the board violated plaintiff’s First Amendment rights, reverses the trial court’s denial of a remittitur, and remands the matter to the trial court for a remittitur hearing.

Justice Rivera-Soto , joined by Justice Hoens , concurs with the majority’s conclusion that the board president was acting as a final policy-maker and, in the proper circumstances, liability could flow to the board. However, Justice Rivera-Soto states that the conclusion that, as a matter of law, there is sufficient credible evidence in this record to sustain the verdict in plaintiff’s favor is unsupportable.

Chief Justice Rabner and Justices Long , LaVecchia and Wallace join in Justice Albin ‘s opinion. Justice Rivera-Soto filed a separate opinion, concurring in part and dissenting in part, in which Justice Hoens joins.

— By Debra McLoughlin

For appellants — Sharon H. Moore (Gebhardt & Kiefer; Moore and Leslie A. Parikh on the briefs). For respondents — Daniel C. Fleming (Wong Fleming; Fleming, Mark W. Thompson and Linda Wong on the briefs). For amicus curiae New Jersey School Boards Association — Carl Tanksley Jr. (Cynthia J. Jahn, Assistant Executive Director).