Pog v. Roberts

• Decision Date: 09 January 2008
• Docket Number: No. A-4926-05T1.,A-4926-05T1.
• Citation: 938 A.2d 158,397 N.J. Super. 502
• Parties: 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.
• Court: New Jersey Superior Court

938 A.2d 158

397 N.J. Super. 502

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.

No. A-4926-05T1.

Superior Court of New Jersey, Appellate Division.

Argued December 3, 2007.

Decided January 9, 2008.

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, Florham Park, 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).

Before Judges WEISSBARD, S.L. REISNER and GILROY.

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 LaBruno 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 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 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, 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.

According to the complaint, POG is an unincorporated,¹ non-partisan 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. 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, 658 A.2d 1230 (1995); Rowe v. Hoffmann-La Roche, Inc., 383 N.J.Super. 442, 452, 892 A.2d 694 (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. Twp. of Middletown, 154 N.J. 282, 284, 712 A.2d 1101 (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, 777 A.2d 993 (App.Div.2001) (quoting N.J. Citizen Action v. Riviera Motel Corp., 296 N.J.Super. 402, 409, 686 A.2d 1265 (App.Div.), certif. granted, 152 N.J. 13, 702 A.2d 352 (1997), appeal dismissed as moot, 152 N.J. 361, 704 A.2d 1297 (1998)). The "essential purpose" of the standing doctrine in New Jersey is to:

assure that the invocation and...