This week the New Jersey Supreme Court decided an important issue of first impression governing the scope of the New Jersey Civil Rights Act. The issue before the Court was whether the CRA permits private individuals to bring claims for constitutional deprivation against defendants who are not acting under color of law. Sean X. Kelly and Melissa J. Kanbayashi successfully sought certification and argued the matter before the Court. In the companion cases of Perez v Zagami and Cottrell v Zagami Justice LaVecchia, writing for the unanimous Court, adopted the defense arguments that both the structure of the Act as well as the underlying legislative history suggested that the Act was not intended to permit causes of action against private individuals who are not acting “under color of law”.

The issue found its way to the Supreme Court after years of underlying litigation between the plaintiffs and our client, a local restaurant. Each plaintiff claimed that the defendant violated their First Amendment free speech rights by filing a defamation action against the plaintiffs for false statements made at public liquor board hearing. The case has important implications in the defense of various claims, including public entity litigation and SLAPP-back suits. This decision also affords consistency between the law governing the NJCRA claims arising under Section 1983.