JEFFREY S. FELD, ESQ. VS. THE CITY OF ORANGE TOWNSHIP (L-4328-15, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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