People for Open Government
SUPERIOR COURT OF NEW
APPELLATE DIVISION
DOCKET NO. A-4926-05T1
PEOPLE FOR OPEN GOVERNMENT,
ANN GRAHAM, ROBERT T. DuVAL,
Plaintiffs-Appellants,
v.
DAVID ROBERTS, in his capacity as
Mayor of
his capacity as a member of the
capacity as a member of the
City Council, and PETER CAMMARANO,
in his capacity as a member of the
Defendants-Respondents.
___________________________________
Argued
Before Judges Weissbard, S.L. Reisner and
On appeal from Superior Court of New Jersey,
Law Division,
Renee Steinhagen argued the cause for
appellants (New Jersey Appleseed Public
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
APPELLATE DIVISION
2 A-4926-05T1
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,
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
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
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
3 A-4926-05T1
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
office having ultimate responsibility for
the award of the contract, or to any
or
political action committee (PAC) that is
organized for the primary purpose of
promoting or supporting
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
holder of the public office having ultimate
4 A-4926-05T1
responsibility for the award of the
contract, or to any
party committee, or to any PAC that is
organized for the primary purpose of
promoting or supporting
candidates or municipal officeholders
between the time of first communications
between that business entity and the City of
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
Roberts was a candidate for Mayor and defendants Ramos, LaBruno,
5 A-4926-05T1
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
election, POG, Graham, DuVal, Crozier and Vance (collectively,
"plaintiffs") filed a verified complaint against Mayor Roberts,
Councilman Ramos and the City of
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
6 A-4926-05T1
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
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
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
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
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
and rendered a decision on the record, dismissing plaintiffs'
complaint for lack of standing and denying plaintiffs' motion to
amend their complaint. On
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
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
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.
[
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 "
historically taken a much more liberal approach on the issue of
standing than have the federal cases."
Federal Constitution, there is no express language in New
judicial power to actual cases and controversies."
(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
Court's first word on standing. See Al Walker, Inc. v.
Stanhope, 23 N.J. 657 (1957); Kozesnik v. Twp. of
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."
[
(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."
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
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
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
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
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
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
on the ballot.
N.Y., 161 N.J. Super. 256 (Ch. Div. 1978), involved an effort to
block destruction of a historic building in, coincidentally,
and taxpayers . . . dedicated to the promotion and preservation
of the historical, cultural and aesthetic assets of
14 A-4926-05T1
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."
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
building could have broad ramifications upon
the efforts of the State and
revitalize and preserve historical areas.
This plaintiff is interested in assuring
that the plans for the historic preservation
of
when coupled with the substantial public
interest and the significant impact that
demolition of the
have upon the state and municipal plans,
gives her standing to bring this suit.
[
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.
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.
portion of its opinion the Court addressed defendants' argument
"that plaintiff has no standing to obtain an equitable
16 A-4926-05T1
injunction against violation of the zoning ordinance."
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
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 (
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
[
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.
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.
