People for Open Government

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Appeal Decision

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

 

DOCKET NO. A-4926-05T1

 

PEOPLE FOR OPEN GOVERNMENT,

ANN GRAHAM, ROBERT T. DuVAL,

ALICE CROZIER and JAMES D. VANCE,

Plaintiffs-Appellants,

v.

DAVID ROBERTS, in his capacity as

Mayor of Hoboken, RUBEN RAMOS, in

his capacity as a member of the

Hoboken City Council, the CITY OF

HOBOKEN, TERRY LaBRUNO, in her

capacity as a member of the Hoboken

City Council, and PETER CAMMARANO,

in his capacity as a member of the

Hoboken City Council,

Defendants-Respondents.

___________________________________

Argued December 3, 2007 - Decided

Before Judges Weissbard, S.L. Reisner and

Gilroy.

 

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, L-2876-05.

 

Renee Steinhagen argued the cause for

appellants (New Jersey Appleseed Public

Interest Law Center, attorneys; Ms.

Steinhagen, of counsel and on the brief).

Christopher R. Welgos argued the cause for

respondents (Schwartz Simon Edelstein Celso

& Kessler, attorneys; Stephen J. Edelstein,

of counsel; Mr. Edelstein, Denis G. Murphy

and Christopher R. Welgos, on the brief).

Ja nuary 9, 2008

 

APPROVED FOR PUBLICATION

January 9, 2008

 

APPELLATE DIVISION

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The opinion of the court was delivered by

WEISSBARD, J.A.D. (retired and temporarily assigned on recall)

In this appeal we must determine whether four individual

plaintiffs, Ann Graham, Robert T. DuVal, Alice Crozier and James

D. Vance, and People for Open Government (POG), an organization

of which they are members, have standing to challenge what they

claim to be a lack of enforcement of an ordinance adopted by the

City of Hoboken (the City) designed to curtail the nefarious

practice of "pay to play," wherein individuals and companies are

awarded municipal contracts as a reward for having made

political contributions to municipal officials. The Law

Division dismissed plaintiffs' suit against Hoboken Mayor David

Roberts, Hoboken City Council members Ruben Ramos, Terry LeBruno

and Peter Cammarano, and the City based on its conclusion that

plaintiffs lacked standing. We reverse. We conclude that

plaintiffs have a sufficient particularized interest in the

enforcement of the ordinance, beyond their status as "mere

taxpayers," to afford them standing to pursue this lawsuit.

I

On November 2, 2004, the voters of Hoboken approved the

City's Public Contracting Reform Ordinance (Ordinance), which

had been placed on the ballot via initiative. Among other

things, the Ordinance restricts certain political contributors

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from negotiating or entering into certain contracts with the

City. In its critical part, the Ordinance provides as follows:

Prohibition on awarding public contracts to

certain contributors.

A. Any other provision of law to the

contrary notwithstanding, the municipality

or any of its purchasing agents or agencies

of those of its independent authorities, as

the case may be, shall not enter into an

agreement or otherwise contract to procure

services, including banking services/relationships,

legal or insurance coverage, or

any other no-bid consulting services, from

any professional business entity, if that

entity has solicited or made any

contribution of money; or pledge of a

contribution, including in-kind contributions,

to a campaign committee of any

Hoboken candidate or holder of the public

office having ultimate responsibility for

the award of the contract, or to any Hoboken

or Hudson County party committee, or to any

political action committee (PAC) that is

organized for the primary purpose of

promoting or supporting Hoboken municipal

candidates or municipal officeholders in

excess of the thresholds specified in

Subsection D. within two (2) calendar years

immediately preceding the date of the

contract or agreement.

B. No professional business entity which

enters into negotiations for, or agrees to,

any contract or agreement with the

municipality of any department or agency

thereof or of its independent authorities

for the rendition of professional, banking

or insurance coverage services or any other

no-bid consultants shall knowingly solicit

or make any contribution of money, or pledge

of a contribution, including in-kind

contributions, to any Hoboken candidate or

holder of the public office having ultimate

4 A-4926-05T1

responsibility for the award of the

contract, or to any Hoboken or Hudson County

party committee, or to any PAC that is

organized for the primary purpose of

promoting or supporting Hoboken municipal

candidates or municipal officeholders

between the time of first communications

between that business entity and the City of

Hoboken regarding a specific professional

services agreement and the later of the

termination of negotiations or the

completion of the contract of agreement.

. . . .

Penalty.

A. All City of Hoboken professional

service agreements shall provide that it

shall be a material breach of the terms of

the government contract for a professional

business entity as defined in Section 20A-6C

to violate, or to aid or abet a violation of

Section 20A-6 B or D or to knowingly conceal

or misrepresent contributions given or

received, or to make or solicit

contributions through intermediaries for the

purpose of concealing or misrepresenting the

source of contribution.

B. Any professional business entity as

defined in Section 20A-6C who knowingly

fails to reveal a contribution made in

violation of this Article, or who knowingly

makes or solicits contributions through

intermediaries for the purpose of concealing

or misrepresenting the source of the

contribution, shall be disqualified from

eligibility for future City contracts for a

period of four (4) calendar years from the

date of the violation.

In the May 10, 2005 Hoboken municipal election, defendant

Roberts was a candidate for Mayor and defendants Ramos, LaBruno,

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and Cammarano were candidates for City Council. During the

campaign they established a joint candidate committee, the

"Roberts Team." As of the election, Mayor Roberts and

Councilman Ramos were incumbents; Councilwoman LaBruno and

Councilman Cammarano were not. In the election, no candidate

for Mayor received a majority of the vote, and no candidate for

Council Member at Large received a majority of the vote.

However, Mayor Roberts qualified for a run-off election for

Mayor, and Councilman Ramos, Councilwoman LaBruno and Councilman

Cammarano qualified for a run-off election for Council Member at

Large. At the run-off election, Roberts, Ramos, LaBruno and

Cammarano were elected.

On June 2, 2005, prior to the June 14, 2005 run-off

election, POG, Graham, DuVal, Crozier and Vance (collectively,

"plaintiffs") filed a verified complaint against Mayor Roberts,

Councilman Ramos and the City of Hoboken. The complaint sought

to compel Roberts and Ramos to report to the City Council

certain campaign contributions received by the Roberts Team,

which allegedly violated the Ordinance, and to compel Roberts,

Ramos and the City to enforce the Ordinance. Plaintiffs filed

an amended complaint on June 10, 2005.

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According to the complaint, POG is an unincorporated,1 nonpartisan

political committee dedicated to the promotion of open,

accountable and transparent municipal government, active

participation of Hoboken residents in municipal affairs and

curbing the undue influence of campaign contributions on public

policy. POG supports public reporting of campaign contributions

that violate the Ordinance. Graham is president of POG.

Plaintiffs DuVal, Crozier and Vance signed the initiative

petition that led to the enactment of the Ordinance and actively

solicited others to sign the petition. POG was the plaintiff in

a prior court action that successfully forced the City to place

the Ordinance on the ballot.

On August 22, 2005, Roberts, Ramos, and the City filed an

answer and asserted affirmative defenses. On or about November

7, 2005, plaintiffs amended their complaint to add LaBruno and

Cammarano as defendants and to add additional allegations of

illegal campaign contributions. The amended complaint also

identified additional holders of no-bid contracts, seeking to

have defendants report them as having made illegal

contributions. On January 3, 2006, defendants filed a motion

for summary judgment dismissing the second amended complaint.

1 POG now asserts that it has been incorporated since September

1, 2005.

7 A-4926-05T1

On February 20, 2006, plaintiffs cross-moved to amend their

complaint a second time, adding Ines-Garcia Keim, an

unsuccessful candidate for the Hoboken City Council in the 2005

election, as a plaintiff and adding additional defendants.

On April 12, 2006, the court heard argument on the motions

and rendered a decision on the record, dismissing plaintiffs'

complaint for lack of standing and denying plaintiffs' motion to

amend their complaint. On April 13, 2006, the judge entered an

order reflecting his decision, along with a statement of reasons

attached.

Plaintiffs appeal, arguing that both the individuals and

POG have standing to bring this action. We agree.

II

Our standard of review is not seriously in dispute. The

issue of standing is a matter of law as to which we exercise de

novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995); Rowe v. Hoffman-La Roche, Inc., 383

N.J. Super. 442, 452 (App. Div. 2006). To the extent that

standing may implicate questions of fact, on a summary judgment

motion plaintiffs' assertions must be accepted as true and

plaintiffs, as the non-moving party, are given the benefit of

all favorable inferences supporting their claim. Garrison v.

8 A-4926-05T1

Twp. of Middletown, 154 N.J. 282, 284 (1998). With those

standards in mind, we turn to the merits.

III

The concept of standing refers to a litigant's "'ability or

entitlement to maintain an action before the court.'" Triffin

v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 2001)

(quoting N.J. Citizen Action v. Riviera Motel Corp., 296 N.J.

Super. 402, 409 (App. Div.), certif. granted, 152 N.J. 13

(1997), appeal dismissed as moot, 152 N.J. 361 (1998)). The

"essential purpose" of the standing doctrine in New Jersey is

to:

assure that the invocation and exercise of

judicial power in a given case are

appropriate. Further, the relationship of

plaintiffs to the subject matter of the

litigation and to other parties must be such

to generate confidence in the ability of the

judicial process to get to the truth of the

matter and in the integrity and soundness of

the final adjudication. Also, the standing

doctrine serves to fulfill the paramount

judicial responsibility of a court to seek

just and expeditious determinations on the

ultimate merits of deserving controversies.

[N.J. State Chamber of Commerce v. N.J.

Election Law Enforcement Comm'n, 82 N.J. 57,

69 (1980).]

9 A-4926-05T1

The beacon we follow was lit in Crescent Park Tenants Ass'n

v. Realty Equities Corp., 58 N.J. 98 (1971).2 At the outset, the

Court took note of the fact that "New Jersey cases have

historically taken a much more liberal approach on the issue of

standing than have the federal cases." Id. at 101. "Unlike the

Federal Constitution, there is no express language in New

Jersey's Constitution which confines the exercise of our

judicial power to actual cases and controversies." Id. at 107

(citing U.S. Const., Art. III, § 2; N.J. Const. Art VI, § 1.)

Nevertheless, the Court observed that a proper exercise of

judicial power precludes rendering "advisory opinions or

function[ing] in the abstract." Ibid. (citing N.J. Turnpike

Auth. v. Parsons, 3 N.J. 235, 240 (1949)). As a corollary to

that principle, our courts will not "entertain proceedings by

plaintiffs who are 'mere intermeddlers' or are merely

interlopers or strangers to the dispute." Ibid. (internal

citations omitted); Ridgewood Educ. Ass'n v. Ridgewood Bd. of

Educ., 284 N.J. Super. 427, 432 (App. Div. 1995).

In N.J. State Chamber of Commerce, supra, 82 N.J. at 68,

the Court again stressed that our standing rules serve to

2 We do not suggest that Crescent Park was the modern Supreme

Court's first word on standing. See Al Walker, Inc. v.

Stanhope, 23 N.J. 657 (1957); Kozesnik v. Twp. of Montgomery, 24

N.J. 154 (1957); Booth v. Bd. of Adj. Rockaway, 50 N.J. 302

(1967).

10 A-4926-05T1

preclude actions initiated by persons whose relation to the

dispute may be described as "total strangers or casual

interlopers," a threshold we have described as "fairly low."

Triffin, supra, 343 N.J. Super. at 81 (quoting Reaves v. Egg

Harbor Twp., 277 N.J. Super. 360, 366 (Ch. Div. 1994)); see also

In re Baby T., 160 N.J. 332, 342 (1999).

The Court expressed its essential philosophy on the issue

as follows:

Without ever becoming enmeshed in the

federal complexities and technicalities, we

have appropriately confined litigation to

those situations where the litigant's

concern with the subject matter evidenced a

sufficient stake and real adverseness. In

the overall we have given due weight to the

interests of individual justice, along with

the public interest, always bearing in mind

that throughout our law we have been

sweepingly rejecting procedural frustrations

in favor of "just and expeditious

determinations on the ultimate merits."

[Crescent Park, supra, 58 N.J. at 107-08

(citations omitted.)]

Not being bound by the federal case or controversy restriction,

our Court "remains free to fashion its own law of standing

consistent with notions of substantial justice and sound

judicial administration." Salorio v. Glaser, 82 N.J. 482, 491

(1980).

Thus, the Court has "consistently held that in cases of

great public interest, any 'slight additional private interest'

11 A-4926-05T1

will be sufficient to afford standing." Ibid. (citations

omitted). "[A] plaintiff's particular interest in the litigation

in certain circumstances need not be the sole determinant.

That interest may be accorded proportionately less significance

where it coincides with a strong public interest." N.J. State

Chamber of Commerce, supra, 82 N.J. at 68 (citing Elizabeth Fed.

Sav. & Loan Assn. v. Howell, 24 N.J. 488, 499 (1957)). In Al

Walker, Inc., supra, 23 N.J. at 662, the Court quoted with

approval from Hudson Region County Retail Liquor Stores, Ass'n.

v. Bd. of Comm'rs of Hoboken, 135 N.J.L. 502, 510 (E & A 1947),

that "it takes but slight private interest, added to and

harmonizing with the public interest" to support standing to

sue." See also Ridgewood Educ. Ass'n, supra, 284 N.J. Super. at

432-33.

Based on our "venerable tradition of liberal application of

standing criteria . . . particularly in taxpayer suits and the

like," id. at 431, we conclude that plaintiffs' standing is

readily apparent. The individual plaintiffs were personally

involved with the unsuccessful effort to have the Hoboken City

Council enact meaningful pay-for-play legislation as well as the

initiative which resulted in forcing the matter onto the ballot

where it was overwhelmingly approved by the voters. Each of the

individual plaintiffs was a key player in that effort and, as a

12 A-4926-05T1

result, has an established and abiding interest in the effective

enforcement of the Ordinance. In no sense could they be

described as interlopers or intermeddlers in this endeavor. If

Hoboken, through its elected officials, chooses to forego

enforcement of this law, then who will force them to do so? The

question answers itself. We see the present action as a

legitimate effort to effectuate the will of the people as

reflected in the initiative which led to the Ordinance.

The complaint, as amended, sought to compel the individual

defendants to report to the City Council contributions to their

campaigns which violated the Ordinance, and to compel

defendants, including the City, to enforce the Ordinance, which

itself contains no enforcement mechanism. While Hoboken's

Faulkner Act form of government places general responsibility

for enforcement of ordinances on the Mayor, N.J.S.A. 40:69A-40a,

with oversight by the City Council, N.J.S.A. 40:69A-36c, -37(a),

we inquired at oral argument as to the identity of any specific

official in the City government charged with responsibility for

enforcement of this Ordinance. Defense counsel replied that

none could be identified. On the other hand, plaintiffs have

alleged that the City "has refused to enforce the ordinance

despite repeated requests to do."

13 A-4926-05T1

Under these circumstances, the individual plaintiffs surely

have that "slight additional private interest," Salorio, supra,

82 N.J. at 491, coupled with the "great public interest," ibid.,

N.J. Chamber of Commerce, supra, 82 N.J. at 68, in enforcement

of the "pay to play" ordinance to provide the required standing

to bring this action. We need not decide whether "mere

taxpayer" status alone would suffice. See Ridgewood Educ.

Ass'n, supra, 284 N.J. Super. at 432; Booth supra, 50 N.J. at

305. Here, plaintiffs Crozier, DuVal and Vance were members of

the Committee of Petitioners who participated in the successful

effort to gather the signatures necessary to place the

initiative petition on the ballot, which ultimately led to

enactment of the Ordinance. Graham, as noted, is President of

POG, an organization that has as one of its primary objectives

enforcement of the Ordinance and was plaintiff in prior

litigation which forced Hoboken to place the initiated ordinance

on the ballot.

Hoboken Env't Comm., Inc. v. German Seaman's Mission of

N.Y., 161 N.J. Super. 256 (Ch. Div. 1978), involved an effort to

block destruction of a historic building in, coincidentally,

Hoboken. The plaintiff organization was "a group of residents

and taxpayers . . . dedicated to the promotion and preservation

of the historical, cultural and aesthetic assets of Hoboken."

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Id. at 259. Plaintiff Manogue was a citizen and taxpayer of

Hoboken and chairperson of the plaintiff organization. In

refusing to dismiss the action on the basis of plaintiffs' lack

of standing, Judge Kentz phrased the issue as being "whether

citizens and residents of a community or an organization which

represents such individuals may bring an action to enforce acts

which are violative of legislation protecting historic sites and

districts." Id. at 263.

Adverting to many of the authorities cited earlier in this

opinion, he held as follows:

The facts reveal that plaintiff Helen

Manogue is a citizen and resident of

Hoboken. The demolition of the Mission

building could have broad ramifications upon

the efforts of the State and Hoboken to

revitalize and preserve historical areas.

This plaintiff is interested in assuring

that the plans for the historic preservation

of Hoboken are carried out. This interest,

when coupled with the substantial public

interest and the significant impact that

demolition of the Mission building would

have upon the state and municipal plans,

gives her standing to bring this suit.

[Id. at 265.]

Much the same could be said of the plaintiffs in the

present action. Of course, we recognize that it is one thing to

seek to restrain municipal action, as in Hoboken Env't Comm.,

and another to seek to have the municipality take action, as

here. However, in a real sense, defendants' lack of action is

15 A-4926-05T1

action. If lack of enforcement leads to illegal campaign

contributors gaining municipal work, that result is every bit as

much action, as to which taxpayer standing is generally

recognized.

The Law Division judge placed primary reliance on Garrou v.

Teaneck Tryon Co., 11 N.J. 294 (1953). Defendants continue to

rely on Garrou on this appeal, as well as Wildlife Preserves,

Inc. v. Poole, 84 N.J. Super. 159 (App. Div. 1964) and Colon v.

Tedesco, 125 N.J. Super. 446 (Law Div. 1973), both of which cite

Garrou. In particular, the judge cited Garrou for the

proposition that "in cases which do not involve a constitutional

challenge to legislation, a plaintiff bringing a cause of action

in his capacity as a taxpayer must allege special damages."

Garrou involved an action by a property owner to enjoin

defendants from utilizing a parcel of land abutting his property

for a parking lot in conjunction with a proposed shopping

center. While the land to be utilized for the shopping center

was in a business zone, the lot for the parking area was in a

residential zone. Garrou, supra, 11 N.J. at 296-97. In

addition to injunctive relief, plaintiff sought to compel the

municipality to enforce its zoning ordinance. Id. at 298. In a

portion of its opinion the Court addressed defendants' argument

"that plaintiff has no standing to obtain an equitable

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injunction against violation of the zoning ordinance." Id. at

300. In the passage relied on by the trial judge here, the

Court said:

The plaintiff is not acting simply as a

citizen or taxpayer of the community in his

quest to prevent further violation of the

zoning ordinance. He is a property owner

whose home adjoins the premises where the

violation is occurring and he alleges

special damages in that he and his family

are being discommoded and his property

depreciated. His interest is distinct from

and greater than that of the community as a

whole and we perceive no reason for denying

him fair opportunity to vindicate and

protect that interest; we consider that such

denial would not only operate unjustly as to

him but would also retard the public

interest. Cf. Speakman v. Mayor and Council

of North Plainfield, 8 N.J. 250, 258 (1951).

In [The Mayor & Council of Alpine] v.

Brewster, 7 N.J. 42, 52 (1951), this court

recently recognized the general rule that an

individual may obtain an equitable restraint

against violation of a zoning ordinance

where he has "sustained special damage over

and above the public injury." This rule is

well established in other jurisdictions (129

A.L.R. 885 (1940)) and has properly been

applied in our Chancery Division under

circumstances comparable to those presented

in the instant matter. See Frizen v. Poppy,

17 N.J. Super. 390, 393 (Ch. Div. 1952);

Yanow v. Seven Oaks Park, Inc., 15 N.J.

Super. 73, 80 (Ch. Div. 1951). See also

Stokes v. Jenkins, 107 N.J. Eq. 318 (Ch.

1930). We are satisfied that the

plaintiff's showing was sufficient to

withstand the motion of the private

defendants to dismiss for lack of standing

to enjoin.

17 A-4926-05T1

[Id. at 300.]

We do not find the holding in Garrou as dispositive of

plaintiffs' standing in this case. Clearly, the facts of Garrou

bear little similarity to the scenario present here. If at all,

Garrou speaks only to the private interest required to enjoin

violation of a zoning ordinance. Indeed, in Kozesnik, supra, 24

N.J. at 177, the Court cited Garrou, along with other

authorities, for the proposition that, "we have recognized a

broad right in taxpayers and citizens of a municipality to seek

review of local legislative action without proof of unique

financial detriment to them." And, in Al Walker, Inc., supra,

23 N.J. at 663, the Court quoted with approval Judge Conford's

opinion in Koch v. Borough of Seaside Heights, 40 N.J. Super.

86, 93 (App. Div.), aff'd, 22 N.J. 218 (1956), that "[i]t is now

firmly held that an action to vindicate the right of the public

to honest and faithful rendition of services by public officials

will lie at the instance of a citizen taxpayer totally apart

from considerations of pecuniary prejudice to the body politic."

(citations omitted). Notably, among the cases cited by Judge

Conford was Garrou.

Thus, we find defendants' reliance on Garrou to be

unpersuasive. Similarly, Wildlife Preserves, supra, 84 N.J.

Super. at 160, does little more than cite Garrou, while noting

18 A-4926-05T1

that the trial court there had found standing on the part of

plaintiff seeking enforcement of a zoning ordinance, but

rejected plaintiffs' claims on its merits. Colon, supra, 125

N.J. Super. at 455-56, likewise adds little to the argument,

finding that the migrant farm worker plaintiff had standing to

seek relief in the form of prohibiting the continued operation

of a migrant labor camp as a public nuisance.

To summarize, the individual plaintiffs in this case of

great public interest have sufficient private interest to confer

standing to prosecute this suit. Measuring "plaintiffs' status

in the case against the essential purposes of the standing

doctrine in New Jersey [which is] to assure that the invocation

and exercise of judicial power in a given case are appropriate,"

we conclude that "the relationship of plaintiffs to the subject

matter [is] . . . such to generate confidence in the ability of

the judicial process to get to the truth of the matter and in

the soundness of the final adjudication." New Jersey State

Chamber of Commerce, supra 82 N.J. at 69. Further, according

plaintiffs standing in this case "serves to fulfill the

paramount judicial responsibility of a court to seek [a] just

and expeditious determination [ ] on the ultimate merits of [a]

deserving controversy." Ibid. We discern no "counterbalancing

consideration," Taxpayers Ass'n of Cape May v. City of Cape May,

19 A-4926-05T1

2 N.J. Super. 27, 32 (App. Div. 1949). Our holding is not

likely to "result in a flood of proceedings which will hamper

the conduct of the public business." Ibid.; see Crescent Park,

supra, 58 N.J. at 107 (citing and quoting Scanwell Labs., Inc.

v. Shaffer, 424 F.2d 859, 872 (D.C. Cir. 1970)).

Because of the individual plaintiffs' standing, the

organizational plaintiff, POG, of which they are members, has

standing as well. Crescent Park, supra, 58 N.J. at 109-11;

Common Cause v. N.J. Election Law Enforce. Comm'n, 74 N.J. 231

(1977).

In light of our disposition, we have no need to address the

merits of the controversy. Defendants have devoted a

considerable portion of their brief to arguing that

contributions alleged to violate the ordinance do not in fact do

so, that plaintiffs' claims are barred by the statute of

limitations, that the Ordinance is void as unconstitutionally

vague, and that indispensable parties were not joined in the

litigation. Plaintiffs have responded to those arguments in

their reply brief. However, the Law Division judge did not

address these contentions because of his conclusion that

plaintiffs lacked standing. All of these issues are to be

considered by the judge on remand, at which time the judge may

20 A-4926-05T1

also reconsider plaintiffs' motion to further amend the

complaint.

Reversed and remanded.

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