Loigman v. Township Committee of the Tp. of Middletown

• Decision Date: 06 February 1997
• Citation: 687 A.2d 1091,297 N.J.Super. 287
• Parties: Larry S. LOIGMAN, Esq., Plaintiff-Respondent, v. The TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN, Defendant-Appellant, and Middletown Township Superior Officers Association, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 287

297 N.J.Super. 287

687 A.2d 1091

Larry S. LOIGMAN, Esq., Plaintiff-Respondent, v. The TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN Defendant-Appellant and Middletown Township Superior Officers Association Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 16, 1996.

Decided Feb. 6, 1997.

Bernard M. Reilly, Red Bank, for appellant (Dowd & Reilly, attorneys; William F. Dowd, on the brief).

Larry S. Loigman, pro se.

Sidney H. Lehmann, Lawrenceville, for respondent Middletown Township Superior Officers Association (Szaferman, Lakind, Blumstein, Watter & Blader, attorneys; Mr. Lehmann, on the brief).

Before Judges PETRELLA, WALLACE and KIMMELMAN.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

The principal issue on appeal is whether a resident and taxpayer of a municipality has standing to bring an action to enforce a collective negotiation agreement between a public employer and a public employee union. ¹ Stated differently, this appeal tests the limits to taxpayer standing in this State and whether a non-party to a labor agreement can intervene to enforce an interpretation of a contract provision and require expenditure of public funds thereunder.

Plaintiff Larry S. Loigman, a resident and taxpayer of the Township of Middletown, instituted suit to enforce a collective negotiation agreement between the Township of Middletown (Township) and the Middletown Township Superior Officers Association (SOA) ² when the Township refused to implement a "Me Too" pay differential or parity clause in the agreement. That clause provides that each rank of superior officer would earn at least 12.5% more than its immediately subordinate rank.

The Law Division Judge rejected the Township's argument that Loigman had no standing to bring this suit and granted his motion for summary judgment without requiring a showing of "specific harm." In granting the motion, the judge refused to consider the validity of the "Me Too" clause, noting that the Public Employment Relations Commission (PERC) had primary jurisdiction. However, his decision had the effect of implementing that clause without ruling on its validity. ³ The judge also concluded that the agreement remained in effect because neither party to it had notified the other of its cancellation, as required by Article XXIX of the agreement.

On appeal the Township challenges the judge's determination that Loigman had standing to sue. It also argues that the judge improperly determined that the collective negotiation agreement between it and the SOA was still in effect; and erred in failing to find the "Me Too" clause illegal and unenforceable.

We agree with the Law Division Judge that the agreement was still in effect because no steps were ever taken to cancel it, although we express concern about the very limited window of opportunity for termination. The judge also correctly determined that the validity of the "Me Too" provision of the agreement is an issue in the first instance for PERC. However, we conclude for the reasons hereinafter stated, that a taxpayer lacks standing to enforce a public sector labor agreement, as opposed to challenging any potential illegality of that agreement.

The Township adopted Ordinance 92-2314 in December 1992, approving salaries, increments and fringe benefits for the SOA, and incorporating the collective negotiation agreement for 1991 and 1992 between it and the Township. Article XXIII of this agreement, "Salary" provided: "Effective January 1, 1991, every SOA member will receive a base salary equal to the highest base salary paid to his immediate subordinate rank plus a differential of twelve-and-one-half (12 1/2) percent." ⁴

The agreement provided in Article XXIX, "Duration":

A. The term of this agreement shall be from January 1, 1991 through December 31, 1992.

B. In the absence of written notice given not more that [sic] one hundred eighty (180) nor less than one hundred fifty (150) days prior to the expiration date by either party, this agreement shall automatically be renewed for a period of another year, and from year to year thereafter, until such time as appropriate notice is given prior to the annual expiration in accordance with the terms of this article.

C. If, following receipt of such notice, negotiations have not been completed prior to termination date, this agreement may be extended for an additional thirty (30) days from its termination date, upon fifteen (15) days notice in writing by either party to the other.

D. In such event, however, and if an extension is accepted, any changes made shall be effective as of the expiration date. If the parties fail to reach an agreement either before the termination of the date the extended period terminates, this agreement shall terminate.

Loigman's complaint in lieu of prerogative writs named the Township and the SOA as party defendants. According to his complaint, no written notice of termination of the agreement was ever given, and Ordinance 95-2402, adopted in April 1995, set salaries, increments and fringe benefits for police officers represented by the local Patrolmen's Benevolent Association (PBA) ⁵ for 1993, 1994, and 1995. Despite the PBA's salaries being set, superior officers did not receive the percentage differential stated in the Township-SOA agreement, but continued to be paid at 1992's annual rate.

The president of the SOA asserted in a certification filed in support of the summary judgment motion, that the Township refused to negotiate with the SOA until negotiations were completed with the PBA. The unsuccessful negotiations between the Township and the PBA resulted in interest arbitration and an award in favor of the PBA. The PBA sought court confirmation of the award and its members did not receive their 1993, 1994 and 1995 raises until after the Chancery Division confirmed the award. ⁶

Although the Township admitted that it passed the ordinances and assented to the collective negotiation agreement, it accused Loigman and the SOA of seeking to obtain from the court what it asserts they could not obtain from PERC--enforcement of the "Me Too" clause. Apparently, after Loigman filed suit the Township's counsel for the first time researched the issue and came to the opinion the clause was unenforceable. The Township denied receiving any benefit from the parity clause, and argued that estoppel should not be applied against a municipality. Additionally, the Township contested Loigman's standing to bring an action which interfered with labor negotiations and matters properly before PERC, where Loigman could not assert a claim; and also because some citizens might disagree with his position.

In connection with the Township's application for a stay of the judgment and of the SOA's enforcement order, the judge refrained from ruling on the merits of the pay differential clause because he considered the issue not within his jurisdiction, but rather that of PERC. He found, however, that the employment contract had neither lapsed nor been rescinded and ordered that the superior officers' retroactive raises be paid by September 8. Although another part of this court denied the Township's emergent application for a stay, on September 20 the Supreme Court granted a partial stay, pending determination of the appeal, of so much of the trial court's order that required payment of the salary increases retroactive to July 10, 1995.

Meanwhile, on or about September 6, the Township filed an unfair labor practice petition with PERC, asserting that the SOA committed an unfair practice "[b]y ignoring its contractual obligation to seek PERC's review of its position," and by using "the ruse of the Loigman 'citizens' lawsuit" to obtain a judicial ruling. The Township requested that PERC declare the "Me Too" clause illegal, and impose interim emergent relief preserving the status quo. On September 8, PERC declined to hear the matter because "the Superior Court has asserted jurisdiction over this matter and therefore the Public Employment Relations Commission is without jurisdiction."

I.

New Jersey has a broad definition of standing when it comes to challenging governmental actions, and our courts are not confined by the "case or controversy" requirement under Article III, § 2 of the United States Constitution. Salorio v. Glaser, 82 N.J. 482, 490, 414 A.2d 943 (1980). Moreover, our Rules of Court concerning prerogative writs, 4:69-1, et seq., reflect a commitment to allowing appropriate citizen challenge in lieu of the old common law writs, e.g., mandamus, quo warranto, and certiorari. ⁷ Alexander's Dept. Stores of New Jersey v. Borough of Paramus, 125 N.J. 100, 107, 592 A.2d 1168 (1991); In re LiVolsi, 85 N.J. 576, 594, 428 A.2d 1268 (1981). While this is so, the ability of taxpayers to challenge governmental action is not unlimited. Taxpayers may not assert the constitutional rights of another. In re Quinlan, 70 N.J. 10, 34, 355 A.2d 647 (1976), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Commission, 82 N.J. 57, 67, 411 A.2d 168 (1980); Matlack v. Burlington County Freeholders Board, 191 N.J.Super. 236, 248-249, 466 A.2d 83 (Law Div.1983), aff'd, 194 N.J.Super. 359, 476 A.2d 1262 (App.Div.1984). "[W]e will not render advisory opinions or function in the abstract nor will we entertain proceedings by plaintiffs who are 'mere intermeddlers or are merely interlopers or strangers to the dispute.' " Crescent Pk. Tenants Ass'n v. Realty Eq. Corp., 58 N.J. 98, 107, 275 A.2d 433 (1971). There must be a substantial likelihood the plaintiff will experience some harm if the court returns an unfavorable decision. N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm'n, supra, 82 N.J. at 67, 411 A.2d 168.

Generally, taxpayer intervention is appropriate where there are claims of fraud or...