JEFFREY S. FELD, ESQ. VS. THE CITY OF ORANGE TOWNSHIP (L-4328-15, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 8, 2018
• Docket: A-3449-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3449-15T1

JEFFREY S. FELD, ESQ.,

Plaintiff-Appellant,

v.

THE CITY OF ORANGE TOWNSHIP, THE CITY OF ORANGE TOWNSHIP CITY COUNCIL, MUNICIPAL CLERK JOYCE L. LANIER, MAYOR DWAYNE D. WARREN, CITY ATTORNEY DAN S. SMITH, COUNCIL PRESIDENT DONNA K. WILLIAMS, and NORTH WARD COUNCILPERSON TENCY A. EASON,

Defendants-Respondents,

and

JAY L. LUBETKIN, CHAPTER 11 TRUSTEE FOR THE BANKRUPTCY ESTATES OF YWCA OF ESSEX AND WEST HUDSON, INC.,

Defendant/Intervenor- Respondent. ____________________________________

Argued February 7, 2018 – Decided August 8, 2018

Before Judges Fuentes, Koblitz, and Suter. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4328- 15.

Jeffrey S. Feld, appellant, argued the cause pro se.

Robert D. Kretzer argued the cause for respondents (Lamb Kretzer, LLC, attorneys; Robert D. Kretzer, on the brief).

John J. Harmon argued the cause for intervenor-respondent (Rabinowitz, Lubetkin & Tully, LLC, attorneys; John J. Harmon, on the brief).

PER CURIAM

Plaintiff Jeffrey S. Feld, Esq., appeals from orders that

together dismissed his civil action in lieu of prerogative writs

against defendants, the City of Orange Township (the City); the

City of Orange Township City Council (City Council); Municipal

Clerk Joyce L. Lanier, Mayor Dwayne D. Warren, City Attorney Dan

S. Smith, Council President Donna K. Williams and North Ward

Councilperson Tency A. Eason (City defendants); and defendant-

intervenor Jay L. Lubetkin, Chapter 11 Trustee for the Bankruptcy

Estates of YWCA of Essex and West Hudson, Inc. (Trustee). The

July 24, 2015 order found that City Ordinance 23-20151 was

"constitutional" and "valid." That ordinance amended the City's

1 Entitled "An Ordinance Amending Chapter 4 of the Municipal Code of the City of Orange Township Entitled Administration of Government Dealing [with] Procedural Rules of the City Council" (the comment limitation ordinance).

2 A-3449-15T1 procedural rules to allow members of the public to speak for a

maximum of five minutes instead of ten on general issues, agenda

items or second readings of ordinances. The September 9, 2015

order denied plaintiff's request for a stay of enforcement of the

comment limitation ordinance. The March 7, 2016 orders dismissed

the remaining counts of plaintiff's complaint. We affirm all the

orders.

Plaintiff, on behalf of himself and his parents' businesses,

has been in litigation with the City and various redevelopers for

years. In a previous unpublished case, we commented on his mode

of litigation, which applies equally here. Feld v. City of Orange

Twp. (Feld VI and VIII), Nos. A-3911-12 and A-4880-12 (App. Div.

March 26, 2015) (slip. op. at 3-4).2

On May 19, 2015, the City adopted Ordinance 23-2015, that

reduced the time from ten minutes to five that individual members

of the public could speak at City Council meetings on general

issues, agenda items or second readings of ordinances before

adoption. This ordinance provided that under the then existing

ten-minute rule, "council meetings can extend late into the evening

2 We cite to this unreported case because it involves many of the same parties and an issue involving plaintiff's standing. In the cited case, we affirmed Feld's lack of standing except for his claim arising under the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21.

3 A-3449-15T1 or early into the next day" and this "discourage[s], if not

preclude[s] a fair opportunity to be heard by other members of the

public." It noted that other municipalities limited the time for

speaking during the public meeting to five minutes. The ordinance

provided that it was in the "best interests of all those wishing

to address the Council" to clarify the rules and to limit all

public speakers to "an aggregate total of five (5) minutes

regardless of whether speaking on general issues, agenda items or

[second] readings of ordinances." The ordinance provided that

"without appropriate and rational limitations, the rights of all

public speakers are curtailed and undermined." The ordinance was

approved by the City's mayor on May 28, 2015, and was effective

twenty days after its publication on June 4, 2015.

On April 13, 2015, City Council approved Resolution 112-2015,

that authorized the City's mayor to execute a lease and option

(the lease option) to buy a building owned by the YWCA of Orange,

which had filed for Chapter 11 bankruptcy. The building was the

YWCA's primary asset. Feld and other persons addressed City

Council at the meeting. The mayor signed the lease option on May

21, 2015. When the Trustee requested approval of the lease option

by the bankruptcy court, plaintiff objected, claiming the City had

not properly authorized the agreement. The bankruptcy court

approved the lease option, allowed the Trustee to intervene in the

4 A-3449-15T1 adversary proceeding and remanded it to the Superior Court. Since

that time, the City approved a resolution that required an

ordinance to approve the purchase.3

On June 19, 2015, plaintiff filed a 257 paragraph complaint

in lieu of prerogative writs against defendants. Count one alleged

that the five minute comment ordinance was ultra vires and

unconstitutionally restricted political speech. It alleged the

ordinance lacked evidentiary support and a factual record and that

it deprived "stakeholders of certain constitutional and statutory

rights and privileges."

Count two sought to void the YWCA lease option. It alleged

plaintiff "and his family business" will be harmed by enforcement

of the lease without "proper notice[]" and a "public hearing on

the financial ramifications" of the lease. It also requested

broad-ranging declaratory relief relating to the lease against the

City defendants.

Count three alleged that defendants violated and conspired

to violate plaintiff's federal and state constitutional and

3 Plaintiff's brief stated that ordinance 12-2016 was approved; the City exercised the option to purchase the building and closed on it. Plaintiff challenged that ordinance in the Superior Court, Law Division of Essex County, Docket No. L-2993-16. His appeal was dismissed on December 21, 2017, for failure to file a timely brief.

5 A-3449-15T1 statutory rights. It requested the court to enjoin defendants

from further violations. This count alleged that defendants denied

plaintiff "and other stakeholders of the benefits of line item

budget appropriation limitations and 'CAP' contained in a properly

approved amended CY 2014 Budget" and "of a statutory [sic] mandated

full time business administrator and tax collector." It asked for

affirmative relief directing the City to "broadcast and videotape

all open and public city council meetings" and to post all approved

minutes on the City's public website.

Count four requested a judgment against the City defendants

based on a claimed violation of 42 U.S.C. § 1983. The complaint

sought injunctive relief similar to that requested in count three.

On June 26, 2015, the trial court signed an order requiring

defendants to show cause (OTSC) why they should not be restrained

from enforcing the five-minute comment period and the YWCA lease

option. The court listed a return date for the OTSC without

imposing any temporary restraints.

The OTSC was returnable on July 24, 2015, limited to Ordinance

23-2015 because the YWCA lease option issue had been removed to

the Bankruptcy Court.4 The trial court heard argument by the

4 After the OTSC was signed, the Trustee filed a notice of removal, removing to federal court the claims in count two that related to the YWCA lease option, claiming that the agreement constituted

6 A-3449-15T1 parties and testimony from defendant Tency Eason. Plaintiff did

not object to Eason's testimony or ask for cross-examination.5

Eason testified the ordinance was needed to administer the Council

meetings more efficiently. Council meetings were going too long,

often until midnight or later. The ordinance was an attempt to

"make sure that all of the comments are heard" and everyone "gets

a chance to talk."

The trial court held that the comment limitation ordinance

was "constitutional" and "valid." The trial court explained that

the ordinance was "totally neutral," because it afforded the same

amount of time to people who expressed opinions on both sides of

an issue. The court found that the municipality established a

compelling state interest, because if meetings lasted too long,

that might discourage qualified people from serving on City Council

and cause members of the public to lose interest in attending the

meetings. The time limit might actually "encourage more speech

than [it would] discourage." Plaintiff's motion for

reconsideration and a stay was denied on September 9, 2015, by a

different trial judge.

property of the YWCA's estate. The removed claims were remanded by order of the Bankruptcy court on December 2, 2015. 5 Three days later, he wrote to the court that he reserved his right to challenge her "veracity," characterizing her testimony as "sua sponte" and not subject to cross-examination.

7 A-3449-15T1 With respect to plaintiff's claim that he twice was removed

from the podium at meetings, the court requested additional

information about the dates and requested the audiotapes from

those meetings. Plaintiff supplied a list of twelve dates from

September 2, 2014, to July 24, 2015, where he claimed defendants

"interrupted, impaired and attempted to censure [his] political

free speech"; his letter did not say he was physically removed.

In December 2015, the Trustee, who had intervened in the

case, filed a motion under Rule 4:6-2(e) to dismiss the complaint,

alleging that plaintiff lacked standing to assert claims regarding

the YWCA lease option. The City defendants filed a cross-motion

to dismiss all the counts of plaintiff's complaint. Plaintiff

opposed both motions.

Following oral argument, the court dismissed plaintiff's

complaint on March 7, 2016, entering two orders. The orders

dismissed count one pursuant to the court's previous finding on

July 24, 2015, that Ordinance 23-2015 was constitutional and valid.

The claim in count two pertaining to the YWCA lease option was

dismissed as moot and for lack of standing. The court dismissed

any remaining claims in count two based on plaintiff's lack of

standing.

The court dismissed counts three and four based on its finding

that defendants had not violated plaintiff's state or federal

8 A-3449-15T1 civil rights.

In this appeal, plaintiff claims that the trial court erred

by dismissing the complaint. He alleges that the comment

limitation ordinance affected his political free speech rights;

that the court did not consider if that ordinance "left open ample

alternative channels of communication"; that it was enacted

without an evidentiary record; and that he has standing to

challenge it. Plaintiff alleges that the challenged orders

deprived him of equal access to justice. He claims he was denied

due process because he could not cross-examine a witness. We do

not find merit in these arguments.

When a motion to dismiss a complaint under Rule 4:6-2(e)

includes matters outside the pleadings that are not excluded by

the court, "the motion shall be treated as one for summary judgment

and disposed of as provided by [Rule] 4:46." See Tisby v. Camden

Cty. Corr. Facility, 448 N.J. Super. 241, 246-47 (App. Div.),

certif. denied, 230 N.J. 376 (2017).

Here, we review the motions to dismiss as summary judgment

motions and use the same de novo standard for both motions. Summary

judgment must be granted if "the pleadings, depositions, answers

to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to

9 A-3449-15T1 a judgment or order as a matter of law." Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

199 (2016) (quoting R. 4:46-2(c)).

We agree with the trial court that plaintiff lacked standing

to challenge the comment limitation ordinance. To have standing

to sue under the common law, a litigant must have "a sufficient

stake in the outcome of the litigation, a real adverseness with

respect to the subject matter, and a substantial likelihood that

the party will suffer harm in the event of an unfavorable

decision." In re Camden Cnty., 170 N.J. 439, 449 (2002).

Plaintiff cannot meet this standard. He is not a resident or

property or business owner in the City. See Feld VI and VIII,

slip op. at 7.

In a prerogative writs action, a plaintiff must have a

sufficient stake in the matter to challenge the governmental

action. See Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657,

664-66 (1957). Plaintiff has not alleged a personal stake here.

We agree also with the trial judge that plaintiff did not

overcome the validity of the ordinance. Actions of a municipal

body are presumed valid and will not be disturbed without

sufficient proof that the conduct was arbitrary, capricious or

unreasonable. See Grabowsky v. Twp. of Montclair, 221 N.J. 536,

551 (2015); Witt v. Gloucester Cty. Bd. of Chosen Freeholders, 94

10 A-3449-15T1 N.J. 422, 430 (1983). The burden of proof rests with the plaintiff

who challenges the municipal action. Price v. Himeji, LLC, 214

N.J. 263, 284 (2013).

The trial court properly rejected plaintiff's claims that the

comment limitation ordinance suffered constitutional deficiency.

The First Amendment right to speak freely, without censorship or

suppression by the government, is subject to reasonable

restrictions. In re Attorney General's "Directive on Exit Polling:

Media & Non-Partisan Pub. Interest Grps.", 200 N.J. 283, 303-04

(2009). A governing body may place reasonable restrictions on

"the time, place, and manner of protected speech and expressive

activity in a public forum." Id. at 304; see Besler v. Bd. of Ed.

of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 570

(2009). To withstand constitutional challenge, the restrictions

must be "justified without reference to the content of the

regulated speech"; "narrowly tailored to serve a significant

governmental interest"; and "leave open[s] ample alternative

channels for communication of the information." Ibid. (quoting

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293

(1984)).

Here, the ordinance limited the time for each member of the

public to comment but did not regulate the content of the comments.

It did not foreclose other avenues of communication. The ordinance

11 A-3449-15T1 did not limit written communication. It did not limit the content

of the communication, but just the amount of time. The ordinance

was narrowly tailored to achieve the government's significant

interest in allowing greater participation by more members of the

public. It provided that it was in the "best interests" of "all

those wishing to address the Council" and that "without appropriate

and rational limitations, the rights of all public speakers are

curtailed and undermined."

The ordinance did not violate the OPMA. The Supreme Court

recently has stated with respect to the OPMA, that "public bodies

are given discretion in how to conduct their meetings." Kean

Fed'n of Teachers v. Morell, __ N.J. __, __ (2018) (slip op. at

5) (citing N.J.S.A. 10:4-12(a)). That statute provides that

"[n]othing in this act shall be construed to limit the discretion

of a public body to permit, prohibit, or regulate the active

participation of the public at any meeting," except that municipal

governing bodies and local boards of education are required to set

aside time for public comment. N.J.S.A. 10:4-12(a). The ordinance

regulated the amount of time that members of the public could use

to address the Council. Plaintiff did not show that this was

arbitrary, capricious or unreasonable.

Count two of plaintiff's complaint challenged the resolution

that approved the YWCA lease purchase agreement. The trial court

12 A-3449-15T1 dismissed this count because it was moot and because plaintiff

lacked standing. "[F]or reasons of judicial economy and restraint,

courts will not decide cases in which the issue is hypothetical,

[or] a judgment cannot grant effective relief . . . ." Cinque v.

N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993)

(citation omitted). Count two clearly was moot to the extent that

it claimed the YWCA lease option was invalid without an ordinance.

City Council approved a subsequent resolution that required the

City to proceed by ordinance in approving the purchase.

To the extent count two may have raised other issues, we

agree with the trial court that plaintiff lacked standing for the

same reasons that he lacked standing for count one. Plaintiff

argued his claims constituted violations of the Faulkner Act,

N.J.S.A. 40:69A-1 to -210; the Local Budget Law, N.J.S.A. 40A:4-1

to -89; the Local Fiscal Affairs Law, N.J.S.A. 40A:5-1 to -42; and

the Local Lands and Buildings Law, N.J.S.A. 40A:12-1 to -30. None

of these statutes expressly conferred standing on individual

members of the public. Therefore, because plaintiff had no common

law standing, he also had no standing under these laws.

Plaintiff's count two did not show any factual basis to

support an OPMA claim. "[C]onclusory allegations are

insufficient" to avoid dismissal. Scheidt v. DRS Techs. Inc., 424

N.J. Super. 188, 193 (App. Div. 2012) (citations omitted).

13 A-3449-15T1 Therefore that law also would not provide standing to plaintiff

in this case.

We are not persuaded that the court erred in dismissing

plaintiff's claimed civil rights or Section 1983 violations. The

gravamen of his claims under the Civil Rights Act and Section 1983

counts of the complaint (counts three and four) relate to the free

speech issue that plaintiff contends is raised by Ordinance 23-

2015. Since we have affirmed the comment limitation ordinance,

we agree with the trial court that these counts were properly

dismissed. He provided no factual basis to support any of the

claimed violations.

After carefully reviewing the record and the applicable legal

principles, we conclude that plaintiff's further arguments are

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

14 A-3449-15T1