An Act concerning the recitation of the Pledge of Allegiance at public meetings, authorizing the court to award fees and costs to a public body defendant in certain actions, and supplementing Title 52 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. During the meeting of any public body, a person authorized by the public body to do so may choose to honor the flag of the United States by repeating the Pledge of Allegiance as codified at 4 U.S.C. s.4. No person shall be required to repeat the pledge, and any person may, for any reason, choose not to repeat the Pledge of Allegiance.

b. In any action brought against a public body or a public employee under this act, the court may, in its discretion, award attorney fees and costs of suit to a defendant who prevails in such action.

c. As used in this section:

(1) "Public body" means a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds including the Legislature, but does not mean or include the judicial branch of the government, any grand or petit jury, any parole board or any agency or body acting in a parole capacity, the State Commission of Investigation, the Apportionment Commission established under Article IV, Section III, of the Constitution, or any political party committee organized under Title 19 of the Revised Statutes.

(2) "Public employee" means any public employee, any person holding a position by appointment or employment in the service of a "public body" as that term is used in this section and shall include any individual whose work has ceased as a consequence of, or in connection with, any action instituted under this act.

2. This act shall take effect immediately.

STATEMENT

This bill would authorize the recitation of the Pledge of Allegiance to the flag of the United States of America during a meeting of a public body. The Pledge of Allegiance is codified under federal law at 4 U.S.C. s.4.

In addition, the bill would permit a court, in its discretion, to award attorney fees and costs of suit in any action brought against a public body or a public employee under the bill to a defendant who prevails in such action.

Under New Jersey law, every school board in the State requires students to salute the United States flag and repeat the Pledge of Allegiance each school day. A student may choose not to salute the flag or recite the pledge, but is required to show full respect to the flag while the pledge is being given merely by standing at attention. There is no provision under current statutory law which relates to the recitation of the Pledge of Allegiance by a public body other that a State school board.

A number of circuit courts have considered challenges to state laws similar to the New Jersey statute requiring students to recite the Pledge of Allegiance. These circuit courts have consistently held that a state statute may mandate that a public school lead the Pledge of Allegiance, so long as students are not forced to participate.

This bill is consistent with these circuit court decisions, as it does not require any person to recite the Pledge of Allegiance. Under the bill, a person authorized by a public body to do so may choose to honor the flag of the United States at a meeting of the public body by repeating the Pledge of Allegiance. No person is required to repeat the pledge, and may, for any reason, choose not to participate in the recitation of the pledge.

It is the sponsor's intent to prevent the unnecessary expenditure of public funds by establishing that a court may award attorney fees and costs to a public body or public employee defendant who prevails in an action challenging the recitation of the pledge as authorized under the bill. In the sponsor's view, the provisions related to an award of fees are warranted, particularly in light of the consistency with which plaintiffs in other jurisdictions who challenged statutes authorizing, but not requiring, the recitation of the Pledge of Allegiance in public schools have not prevailed.

The bill would define "public body" to mean a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds including the Legislature, but does not mean or include the judicial branch of the government, any grand or petit jury, any parole board or any agency or body acting in a parole capacity, the State Commission of Investigation, the Apportionment Commission established under Article IV, Section III, of the Constitution, or any political party committee organized under Title 19 of the Revised Statutes. The bill defines "public employee" to mean any public employee, any person holding a position by appointment or employment in the service of a "public body" as that term is used in the bill and shall include any individual whose work has ceased as a consequence of, or in connection with, any action instituted under this act. The bill would take effect immediately.