Chapter 11 ACTIONS IN LIEU OF PREROGATIVE WRITS

Transcription

1 0001 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: (Beg Group) Chapter 11 ACTIONS IN LIEU OF PREROGATIVE WRITS Synopsis PART I: STRATEGY Scope Objective and Strategy PART II: DETERMINING WHETHER ACTION IN LIEU OF PREROGATIVE WRITS MAY BE BROUGHT CHECKLIST: Determining Whether Action in Lieu of Prerogative Writs May Be Brought Understanding Nature and Purpose of Action in Lieu of Prerogative Writs [1] Understanding that Availability of Action in Lieu of Prerogative Writs Is Limited to that of Traditional Prerogative Writs [2] Maintaining Action in Lieu of Prerogative Writs as of Right Determining Whether Review of Official Action Could Have Been Sought by Applying for Writ of Certiorari [1] Determining Whether Review of Agency or Municipal Action is Sought [2] Determining Whether Adequate Remedy at Law Exists [3] Considering that Certiorari Review of Actions by Judicially-Created Agencies Is Unavailable Determining Whether Writ of Mandamus Was Available to Compel Official Action Sought 11-1

2 0002 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: NEW JERSEY PLEADINGS 11-2 [1] Determining Whether Compelling Official Action Is Remedy Sought [2] Considering that Mandamus Can Only Be Used After Actual Default Determining Whether Writ of Quo Warranto or Prohibition Could Have Been Sought [1] Considering Whether Writ of Quo Warranto Could Have Been Used to Challenge Right to Hold Public Office [2] Considering Whether Traditional Writ of Prohibition Could Have Been Sought Considering Whether Matter Must Be Appealed to Appellate Division Because It Concerns State Agency Action [1] Determining Whether Matter Concerns State Agency Action [2] Bringing Action in Lieu of Prerogative Writs Where State Agency s Authority Is Confined to Single Locality [3] Bringing Action in Lieu of Prerogative Writs Where No Record Is Available for Appellate Review Determining Whether Challenge to Agency Action Must Be Brought in Tax Court Determining Whether Exhaustion of Right of Review Before Administrative Agency Is Required [1] Understanding Purpose of Exhaustion Requirement [2] Determining Whether Administrative Review Unnecessary Because of Lack of Formal Administrative Review Process [3] Considering Whether Administrative Agency Has Jurisdiction [4] Considering Whether Exhaustion Requirement May Be Waived [5] Determining Whether Exhaustion Is Not Required Because Issue Is Purely Question of Law [6] Determining Whether Exhaustion of Administrative Remedies Is Unnecessary Because Enactment Is

3 0003 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS Challenged as Facially Unconstitutional [7] Determining Whether Administrative Remedy Would Be Futile Determining Whether Client Has Standing to Maintain Action in Lieu of Prerogative Writs [1] Determining Whether Individual Client Has Standing to Maintain Action [2] Determining Whether Client Has Standing as Citizen and Taxpayer [3] Determining Whether Party Has Standing to Challenge Regulation [4] Determining Whether Association Has Standing to Bring Action [5] Determining Whether Local Governing Body Has Standing to Bring Action PART III: DETERMINING PERIOD IN WHICH ACTION IN LIEU OF PREROGATIVE WRITS MUST BE BROUGHT CHECKLIST: Determining Period in Which Action in Lieu of Prerogative Writs Must Be Brought Determining Whether Rule 4:69-6 Time Limits Apply to Actions in Lieu of Prerogative Writs [1] Commence Action Within 45 Days of Accrual of Right to Review, Hearing or Relief [2] Do Not Apply Time Limit to Other Causes of Action Determining Whether Different Limitation Period Applies to Action in Lieu of Prerogative Writs [1] Bringing Action Contesting Approval of School Bond [2] Bringing Action to Review Assessment or Award for Municipal Improvement [3] Challenging Planning Board Determinations [4] Challenging Ordinance or Resolution for Public Improvement [5] Bringing Action in Relation to Joint Sewers or Disposal Plants [6] Bringing Action Concerning Permit to Erect Building

4 0004 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: NEW JERSEY PLEADINGS 11-4 in Bed of Highway [7] Bringing Action Under In Rem Tax Foreclosure Act [8] Bringing Action to Review Tax Sale of Land [9] Bringing Action to Contest Tax Sale Certificate [10] Bringing Action to Review Ordinance Authorizing Notes or Bonds Using Prerogative Writ to Void Action Taken at Nonconforming Public Meeting Enlarging Time Limit to Bring Action in Lieu of Prerogative Writs PART IV: BRINGING AN ACTION IN LIEU OF PREROGATIVE WRITS CHECKLIST: Bringing an Action in Lieu of Prerogative Writs Applying for Stay or Other Temporary Relief when Bringing Action in Lieu of Prerogative Writs [1] Applying for Preliminary Injunction to Stay Enforcement of Ordinance [2] Showing Entitlement to Preliminary Injunction [3] Obtaining Temporary Injunction Without Notice and Hearing Complying with Requirements for Drafting, Filing, and Serving Complaint in Action in Lieu of Prerogative Writs [1] Drafting Complaint [2] Filing Complaint [3] Serving Complaint Preparing for Preliminary Case Conference in Action in Lieu of Prerogative Writs Determining Whether to Move for Summary Judgment in Action in Lieu of Prerogative Writs [1] Moving for Summary Judgment When Agency Record Is Available for Judicial Review [2] Moving for Summary Judgment to Compel Performance of Ministerial Act [3] Moving for Summary Judgment in Action Challenging Municipal Ordinance

5 0005 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS Moving for Summary Judgment in Action in Lieu of Prerogative Writs [1] Preparing Summary Judgment Motion [2] Filing Summary Judgment Motion PART V: APPEALING INTERLOCUTORY ORDER OF AGENCY OR OFFICER CHECKLIST: Appealing Interlocutory Order of Agency or Officer Determining Whether Interests of Justice Merit Interlocutory Appeal Applying for Leave to Appeal Interlocutory Order

6 0006 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: NEW JERSEY PLEADINGS 11-6 PART I: STRATEGY Scope This chapter addresses the following: Understanding prerogative writs. The requirements for bringing an action in lieu of prerogative writs. The limitation periods for various actions. Practices and procedures for bringing an action in lieu of prerogative writs. Practices and procedures for obtaining interlocutory relief Objective and Strategy The purpose of this chapter is to provide the practitioner with a basic understanding of the concept of prerogative writs and the requirements for bringing an action in lieu of such writs. This procedure is important for those seeking to challenge the actions of local governments or officials. Unlike other areas of the law, the failure here to comply with the technical requirements of the Court Rules can prove fatal, especially with respect to the various limitations periods. Therefore, an understanding of these procedural requirements is critical.

7 0007 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS PART II: DETERMINING WHETHER ACTION IN LIEU OF PREROGATIVE WRITS MAY BE BROUGHT CHECKLIST: Determining Whether Action in Lieu of Prerogative Writs May Be Brought Determine whether review, hearing, and relief would have been available under traditional prerogative writ. Determine whether action challenges action or inaction of local government agency, government official, or municipality. Determine whether prerogative writ could not have been used because adequate remedy at law is available. Authority: N.J. Ct. R. 4:69-1; O Neill v. Washington, 193 N.J. Super. 481, 475 A.2d 55 (App. Div. 1984) Discussion: See below. Determine whether action could have been challenged by petitioning court for prerogative writ of certiorari. Determine whether action seeks review of illegal action of municipality or administrative agency, including municipal ordinances, agency regulations or agency determinations. Authority: Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949). Discussion: See below. Determine whether writ of mandamus could have issued because action seeks to compel lower court or government entity to perform a mandatory or ministerial duty. Consider that writ of mandamus was used to compel government agency or official to perform duty, but could not dictate manner in which duty was performed. Determine whether mandamus would have been available because duty is ministerial duty that does not require exercise of discretion. Determine whether mandamus would have been available to compel official or agency to exercise its discretion.

8 0008 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: NEW JERSEY PLEADINGS 11-8 Consider that writ of mandamus could be used only if official or agency failed to perform duty, and not in anticipation of such failure. Authority: Switz v. Middletown Tp., 23 N.J. 580, 130 A.2d 15 (1957). Discussion: See below. Determine whether relief could have been obtained through writ of quo warranto or prohibition. Determine whether action is brought to challenge individual s right to hold public office. Authority: N.J. Ct. R. 4:69-1; New Jersey State Lodge- Fraternal Order of Police v. Aaron, 39 N.J. Super. 423, 121 A.2d 402, (App. Div. 1956). Discussion: See below. Determine whether matter must be appealed to Appellate Division because it concerns state agency action. Consider that exclusive method for reviewing action or inaction of state agency or official is by appeal to Superior Court, Appellate Division. Determine whether exception to rule requiring appeal of state action to Appellate Division applies because authority of agency in question is confined to single locality. Determine whether exception to rule requiring appeal of state action to Appellate Division applies because plenary hearing is necessary to develop record and there was no adversarial proceeding before state agency. Authority: N.J. Ct. R. 4:69-1, 2:2-3; Selobyt v. Keough-Dwyer Correctional Facility, 375 N.J. Super. 91, 866 A.2d 101 (App. Div. 2005), Montclair v. Hughey, 222 N.J. Super. 441, 537 A.2d 692 (App. Div. 1987). Discussion: See below. Determine whether challenge to agency action must be brought in

9 0009 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS Tax Court because review of final decision with respect to tax matter is sought. Determine whether matter must be brought in Tax Court because it involves review of final decision of municipality or county tax board regarding tax matter. Consider that enforcement of county tax board decision, in absence of appeal, may be sought by action in lieu of prerogative writ. Authority: N.J. Ct. R. 4:69-1, 8:2-1 et seq. Hernandez v. W. N.Y., 18 N.J. Tax Ct. 438 (1999). Discussion: See below. Determine whether right of review before administrative agency has been exhausted. Determine whether it is unnecessary to seek administrative review because there is no formal administrative review process Authority: N. J. Ct. R. 4:69-5; Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949). Discussion: See below. Consider whether exhaustion requirement may be waived, because one of following is true: Issue to be decided is purely a question of law. Public interest would be best served by prompt decision. Irreparable harm would result from denial of immediate judicial action. Exhaustion of administrative remedies would be futile. Ordinance or regulation is challenged as facially unconstitutional. Authority: N. J. Ct. R. 4:69-5; Ward v. Keenan, 3 N.J. 298, 308, 70 A.2d 77 (1949). Discussion: See below.

10 0010 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: [1] NEW JERSEY PLEADINGS Determine whether client has standing to bring action in lieu of prerogative writs. Determine whether there is substantial likelihood that client s interests will be adversely affected by decision being challenged. Determine whether client is citizen taxpayer of locality. Understand that citizens have broad right to challenge local legislative and judicial action, without need to show unique personal detriment. If client is governing body, determine whether there is substantial likelihood that client will suffer injury, independent of injury to citizens, in event of adverse decision. If client is association, determine whether there is substantial likelihood that members of association will suffer harm in event of adverse decision. Authority: In re Camden County, 170 N.J. 439, 790 A.2d 158 (2002); N.J. Builders Ass n v. Bernards Twp., 108 N.J. 223 (1987). Discussion: See below Understanding Nature and Purpose of Action in Lieu of Prerogative Writs [1] Understanding that Availability of Action in Lieu of Prerogative Writs Is Limited to that of Traditional Prerogative Writs Prerogative writ actions are the traditional means used by citizens to challenge local government and agency decisions or actions. Alexander s Dep t Stores, Inc. v. Paramus, 125 N.J. 100, 592 A.2d 1168 (1991) (reviewing use of traditional prerogative writs). In New Jersey, the traditional prerogative writs of certiorari, mandamus, quo warranto, and prohibition are consolidated into a single action, known as an action in lieu of prerogative writs. N.J. Const. Article VI, 5, 4. An action in lieu of prerogative writs may be brought if review, hearing, and relief was previously available by prerogative writ. N.J. Ct. R. 4:69-1. An action in lieu of prerogative writs is a substitute form of action that

11 0011 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS 11.04[2] adheres to the basic principles of the traditional writ it replaces. Although the procedure for bringing an action in lieu of prerogative writs differs from the procedures for bringing the various prerogative writs, the substantive law governing the prerogative writs is still applicable. Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 1 (1975) (exceptions to exhaustion requirement under decisional law pertaining to prerogative writs also apply to in-lieu proceedings). Accordingly, an action in lieu of prerogative writs may be brought only if review, hearing, or relief would have been available under one of the traditional prerogative writs. In re LiVolsi, 85 N.J. 576, 428 A.2d 1268 (1981) (action in lieu of prerogative writ could not be brought to challenge decision of judicially-created fee arbitration committee, because prerogative writ of certiorari could only be used to challenge actions of administrative agencies). Therefore, it is important to understand these writs to determine whether an action in lieu of prerogative writs may be brought. Although an action in lieu of prerogative writs cannot be brought unless relief would have been available under a traditional prerogative writ, it is unnecessary to identify the traditional prerogative writ that corresponds to the action being brought. Ward v. Keenan, 3 N.J. 298, 304, 70 A.2d 77 (1949) (explaining that action in lieu of prerogative writs is intended to eliminate confusion about which writ would be appropriate). [2] Maintaining Action in Lieu of Prerogative Writs as of Right An action in lieu of prerogative writs may be maintained as of right. By contrast, in the past, courts had discretion to deny an application for a prerogative writ, such as a writ of mandamus, and often did so without explanation. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949) (providing detailed discussion of actions in lieu of prerogative writs). z Strategic Point: The rules governing action in lieu of prerogative writs do not reference or alter any basis for a claim of a constitutional right to a jury trial that might otherwise be asserted in certain prerogative writ actions. N.J. Ct. R. 4:69-1 et seq. See also O Neill v. State Highway Department, 40 N.J. 326, 191 A.2d 481 (1963).

12 0012 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: [1] NEW JERSEY PLEADINGS Determining Whether Review of Official Action Could Have Been Sought by Applying for Writ of Certiorari [1] Determining Whether Review of Agency or Municipal Action is Sought The prerogative writ of certiorari provided the means of seeking redress for illegal government actions that invaded a citizen s rights. Certiorari was used to review quasi-judicial, quasi-legislative, and administrative actions of all kinds. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949) (providing history of prerogative writ actions in New Jersey). Thus, certiorari was used to review the actions of inferior tribunals, such as administrative agencies. Wyzykowski v. Rizas, 132 N.J. 509, 626 A.2d 406 (1993) (court had jurisdiction to determine whether planning board had conflict of interest in granting approvals of development application submitted by mayor in private capacity). Certiorari was also commonly used to review municipal ordinances. Hills Development Co. v. Bernards Township, 103 N.J. 1, 510 A.2d 621 (1986) (review of provisions of Fair Housing Act did not impermissibly interfere with court s right to review municipal housing ordinances). The prerogative writ of certiorari was predominantly an appellate form of relief, and was used to review errors of law apparent on the face of the record made by a quasi-judicial tribunal. Baldwin Constr. Co. v. Essex County Bd. of Taxation, 16 N.J. 329, 345, 108 A.2d 598 (1954) (distinguishing between certiorari and mandamus). However, under current practice, the court has discretion to permit additional discovery and consider extrinsic evidence in an action in lieu of the prerogative writ of certiorari. Romanowski v. Brick, 185 N.J. Super. 197, 447 A.2d 1352 (Law Div. 1982) (granting de novo review to suspended police officers, who would have been entitled to new hearing but for fortuitous circumstances of their sentences). [2] Determining Whether Adequate Remedy at Law Exists Certiorari was not available if there was another, adequate remedy, such as monetary damages. Accordingly, an action in lieu of the prerogative writ of certiorari may not be maintained if there is an adequate remedy at law. O Neill v. Washington, 193 N.J. Super. 481, 475 A.2d 55 (App. Div. 1984) (action in lieu of prerogative writ improper in suit to recover tax overpayments because money judgment was adequate remedy).

13 0013 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS 11.06[1] [3] Considering that Certiorari Review of Actions by Judicially- Created Agencies Is Unavailable Because there was no certiorari review of actions by judicially-created agencies, an action in lieu of prerogative writs cannot be used to seek review of the actions of a judicially-created agency. In re LiVolsi, 85 N.J. 576, 428 A.2d 1268 (1981) (action in lieu of prerogative writ could not be brought to challenge decision of judicially-created fee arbitration committee because prerogative writ of certiorari could only be used to challenge actions of administrative agencies) Determining Whether Writ of Mandamus Was Available to Compel Official Action Sought [1] Determining Whether Compelling Official Action Is Remedy Sought The prerogative writ of mandamus is used to remedy official inaction. Joseph v. Passaic Hospital, 26 N.J. 557, 141 A.2d 18 (1958) (discussing use of writ of mandamus). The writ of mandamus is used to compel a government official or entity to perform a required ministerial duty. A duty is ministerial if it is absolutely required and involves no more than the execution of a set task, and the manner in which the task is to be performed is prescribed by law. A duty is not ministerial when there is room for the exercise of discretion. In re Failure by the Dep t of Banking & Ins., 336 N.J. Super. 253, 764 A.2d 494, (App. Div. 2001) (when legislation required agency to revise dental fee schedule biannually but did not impose deadline, agency had discretion as to timing of act and court would not impose deadline). Mandamus is also available to compel an agency to exercise its discretion, if it has failed to perform a mandatory duty that requires the exercise of discretion. In such cases, the court must order the government entity to perform its duty, without dictating how it should exercise its discretion. Switz v. Middletown Tp., 23 N.J. 580, 130 A.2d 15 (1957) (mandating towns to assess property at full value, as required by statute); Aparin v. County of Gloucester, 345 N.J. Super. 41, 783 A.2d 260 (Law Div. 2000) (mandating county to provide police training to county rangers, as specified in civil service job description). Accordingly, an action in lieu of prerogative writs may be brought to compel a government entity to perform a specific ministerial act or to

14 0014 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: [2] NEW JERSEY PLEADINGS compel the performance of a discretionary function. However, an action in lieu of prerogative writs cannot be used to compel an agency to exercise its discretion in a specific manner, because the prerogative writ of mandamus could not have been used in that manner.loigman v. Middletown Tp., 297 N.J. Super. 287, 687 A.2d 1091 (App. Div. 1997)(taxpayer could not bring action to enforce public sector labor agreement). Mandamus may not be used if an ordinary action would provide an equally adequate and complete remedy. However, the other remedy must be both realistically adequate, and available. Garrou v. Teaneck Tryon Co., 11 N.J. 294, 94 A.2d 332 (1953) (indictment of public officials for failing to enforce zoning ordinance would not provide adequate remedy to aggrieved neighbor). In addition, a remedy in mandamus is inappropriate if its effect would be to harm the public, to cause confusion and disorder, or to injure the rights of third parties. Switz v. Middletown Tp., 23 N.J. 580, 130 A.2d 15 (1957) (mandating towns to assess property at full value, as required by statute, but delaying effect of mandate for two years, to avoid detriment to community). [2] Considering that Mandamus Can Only Be Used After Actual Default The traditional writ of mandamus cannot be used in anticipation of official inaction, but only to remedy such inaction once it has occurred. In re Resolution of State Com. of Investigation, 108 N.J. 35, 527 A.2d 851 (1987) (in dicta, stating that plaintiffs could bring action in lieu of prerogative writs to force SCI to refer evidence of unlawful disclosures to Attorney General) Determining Whether Writ of Quo Warranto or Prohibition Could Have Been Sought [1] Considering Whether Writ of Quo Warranto Could Have Been Used to Challenge Right to Hold Public Office The prerogative writ of quo warranto was used to challenge the right of an individual to hold a public office. New Jersey State Lodge-Fraternal Order of Police v. Aaron, 39 N.J. Super. 423, 121 A.2d 402 (App. Div. 1956) (action challenging legality of appointment of police officers sounded in quo warranto). Under current law, an action in lieu of prerogative writ may be brought

15 0015 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS 11.07[2] against a person for usurping, intruding into or unlawfully holding or executing any public office or franchise. NJS 2A:66-6. If the officeholder was ineligible at the time he or she was appointed or elected, the proper means of challenging his or her right to hold office is by means of an action in lieu of prerogative writ. Pickett v. Harris, 219 N.J. Super. 253, 530 A.2d 319 (App. Div. 1987) (violation of court rule prohibiting holding dual office did not affect council member s right to hold office). The statutory action for challenging an individual s right to hold office may be brought by a person who claims a right to the office, or by any person who would have had standing to seek a prerogative writ of quo warranto. NJS 2A:66-6, 2A:66-8. Accordingly, an action in lieu of the prerogative writ of quo warranto, involving a municipal office or position, may be brought only by a person claiming a right to hold office or a citizen and taxpayer of the municipality. New Jersey State Lodge-Fraternal Order of Police v. Aaron, 39 N.J. Super. 423, 121 A.2d 402 (App. Div.1956) (plaintiff corporation lacked standing to bring action in nature of quo warranto). It is not enough that the plaintiff be a taxpayer of the state; the plaintiff must actually pay taxes in the municipality involved. Demoura v. Newark, 74 N.J. Super. 49, 180 A.2d 513 (App. Div. 1962) (summary judgment granted against plaintiff who failed to provide legal proof that he was city taxpayer). [2] Considering Whether Traditional Writ of Prohibition Could Have Been Sought Prohibition was the traditional writ used to block proceedings when a tribunal was acting manifestly beyond its jurisdiction. Alexander v. Crollott, 199 U.S. 580, 26 S. Ct. 161, 50 L. Ed. 317 (1905) (writ should issue only when there is no other remedy). The writ of prohibition was rarely used in New Jersey, because of the availability of other remedies, such as certiorari or mandamus. Carrick v. First Crim. Court, 126 N.J.L. 598, 20 A.2d 509 (Sup. Ct. 1941) (noting total absence of reported cases in which prohibition was granted). The writ of prohibition could only be issued against an inferior tribunal; it could not be used to restrain proceedings in the same court or in a court with equal though different jurisdiction. Swanson v. Swanson, 8 N.J. 169, 84 A.2d 450 (1951) (writ of prohibition not available in Superior Court against another judge or division of Superior Court). Although virtually never used in New Jersey, an action in lieu of

16 0016 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: [1] NEW JERSEY PLEADINGS prerogative writs in the nature of prohibition may still, theoretically, be brought Considering Whether Matter Must Be Appealed to Appellate Division Because It Concerns State Agency Action [1] Determining Whether Matter Concerns State Agency Action An action in lieu of prerogative writ may not be brought if review is available under N.J. Ct. R. 2:2-3, which governs appeals to the Appellate Division. N. J. Ct. R. 4:69-1. Under N.J. Ct. R. 2:2-3, the exclusive method for reviewing a final action or inaction of a state administrative agency or officer is by direct appeal to the Appellate Division. N.J. Ct. R. 2:2-3(a)(2); Prado v. State, 186 N.J. 413, 895 A.2d 1154, 2006 N.J. LEXIS 496 (May 8, 2006) (Appellate Division had exclusive jurisdiction to review Attorney General s decision to deny state official defense in discrimination action brought by state employees, although underlying action was being heard in Law Division). The Appellate Division also has exclusive jurisdiction to review the validity of any rule promulgated by a state agency or officer. N.J. Ct. R. 2:2-3(a)(2). There are two judicially-created exceptions to this rule. See 11.08[2], [3] below. z Strategic Point: Before filing an action in lieu of prerogative writs in non-tax matters challenging an agency, counsel must determine the following: (1) whether the agency is a local agency; if the agency is a state agency; whether authority is confined to a single locality; and (2) whether there is no record available. Unless one of these conditions exist, relief must be sought in the Appellate Division. N.J. Ct. R. 4:69-1. [2] Bringing Action in Lieu of Prerogative Writs Where State Agency s Authority Is Confined to Single Locality Review of an agency s action is not available under N.J. Ct. R. 2:2-3 if the agency s authority is confined to a single locality, even if the agency can be considered a state agency for most purposes. In such cases, a proceeding in lieu of prerogative writ is the proper means of obtaining

17 0017 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS 11.08[3] review. Selobyt v. Keough-Dwyer Correctional Facility, 375 N.J. Super. 91, 866 A.2d 101 (App. Div. 2005) (although county correctional facility was extensively regulated by state department of corrections, its authority was strictly local, and appeal of facility s action was by action in lieu of prerogative writ); Infinity Broadcasting Corp. v. N.J. Meadowlands Comm., 377 N.J. Super. 209, 872 A.2d 125 (App. Div. 2005) (although Meadowlands Commission is state agency, its land use authority is exercised on local basis; review of commission s land use actions must be sought by action in lieu of prerogative writ). [3] Bringing Action in Lieu of Prerogative Writs Where No Record Is Available for Appellate Review Appellate review of administrative action is not available under N.J. Ct. R. 2:2-3 if there were no proceedings before the state agency and there is consequently no record available for review. Pfleger v. State Highway Dep t, 104 N.J. Super. 289, 250 A.2d 16 (App. Div. 1968) (condemnation by Department of Transportation was properly challenged by action in lieu of prerogative writs in Law Division, because there was no provision for evidentiary hearing in condemnation proceeding). In such cases, review requires the exercise of such trial court functions as gathering evidence and making findings of facts. Accordingly, a proceeding in lieu of prerogative writs is appropriate to review the action of a state agency if there has not been an adversarial proceeding at the agency level, and a hearing is necessary to develop a record. Montclair v. Hughey, 222 N.J. Super. 441, 537 A.2d 692 (App. Div. 1987) (challenge to Department of Environmental Protection s administrative order was properly brought in Law Division, because order was not preceded by hearing). z Strategic Point: The challenging or interested party participating in the proceedings below should seek permission to engage a certified shorthand reporter where the official record will be preserved by electronic means since that party bears the burden of reconstructing gaps in the record. State v. Paduani, 307 N.J. Super. 134, 704 A.2d 582 (App. Div.), certif. denied, 153 N.J. 216 (1998). Compare N.J. Ct. R. 4:69-4 with N.J. Ct. R. 2:5-3(f).

18 0018 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: NEW JERSEY PLEADINGS Determining Whether Challenge to Agency Action Must Be Brought in Tax Court A proceeding in lieu of prerogative writs may not be brought if the Tax Court has jurisdiction over the matter pursuant to N.J. Ct. R. 8:2. N. J. Ct. R. 4:69-1. The Tax Court has initial review jurisdiction of all final decisions with respect to a tax matter, including decisions of county and municipal agencies and officials. A final decision is any act, action, proceeding, ruling, decision, order or judgment including the promulgation of any rule or regulation with respect to a tax matter. N.J. Ct. R. 8:2-1 et seq. The Tax Court has initial review jurisdiction of such local matters as realty transfer fees and local property tax assessments. N.J. Ct. R. 8:2-1 et seq. However, the Tax Court does not have jurisdiction to enforce a county tax board decision in the absence of an appeal. Therefore, an action to require a municipality to comply with a county tax board decision is properly brought in the Law Division by a proceeding in lieu of prerogative writs. Hernandez v. W. N.Y., 18 N.J. Tax Ct. 438 (1999) (Tax Court did not have jurisdiction to hear application to compel municipality to pay interest on refund) Determining Whether Exhaustion of Right of Review Before Administrative Agency Is Required [1] Understanding Purpose of Exhaustion Requirement An action in lieu of prerogative writs ordinarily may not be brought if there is still a right of review before the administrative agency. N.J. Ct. R. 4:49-5. The exhaustion rule serves the following three purposes: 1. To ensure that claims will be heard, as a preliminary matter, by a body possessing expertise in the area; 2. To allow for administrative resolution of the dispute, if possible, so that there is no need to institute suit; and 3. To create a factual record necessary for meaningful appellate review. Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 396 A.2d 573

19 0019 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS 11.10[4] (1979) (landowners seeking relocation costs after condemnation should have exhausted agency review procedures, despite possible constitutional issue). However, exhaustion of the right of administrative review is not necessary when it is manifest that the interest of justice requires otherwise. N.J. Ct. R. 4:69-5. Exception: Where the exhaustion requirement will preclude an action in lieu of prerogative writ, counsel may want to file an action for declaratory judgment seeking an interpretation of an ordinance since the exhaustion of remedy requirement is not applicable in such actions. Pullen v. South Plainfield Planning Board, 291 N.J. Super. 303, 677 A.2d 278 (Law Div. 1995), aff d, 291 N.J. Super. 1, 676 A.2d 1095 (App. Div. 1996). [2] Determining Whether Administrative Review Unnecessary Because of Lack of Formal Administrative Review Process A plaintiff is not required to seek administrative review if no formal review process exists for administrative resolution of the type of dispute at issue. Aparin v. County of Gloucester, 345 N.J. Super. 41, 783 A.2d 271 (Law Div. 2000) (no formal administrative procedure available to county rangers seeking to compel county to provide them with police training, as required by their civil service job specification). [3] Considering Whether Administrative Agency Has Jurisdiction An agency may not consider a matter that falls outside its statutory jurisdiction, even if the matter is related to areas within the agency s jurisdiction. Alexander s Dep t Stores, Inc. v. Paramus, 125 N.J. 100, 592 A.2d 1168 (1991) (Council on Affordable Housing (COAH) lacked jurisdiction to consider whether municipality s zoning ordinance satisfied substantive and procedural standards unrelated to Mt. Laurel requirements). [4] Considering Whether Exhaustion Requirement May Be Waived The requirement that administrative remedies must be exhausted before

20 0020 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: [5] NEW JERSEY PLEADINGS an action in lieu of prerogative writs is brought is not an absolute jurisdictional requirement. Abbott v. Burke, 100 N.J. 269, 495 A.2d 376 (1985) (remanding case to agency, despite constitutional issues, when resolution of issues was fact-sensitive and required agency expertise). The court has discretion to waive the exhaustion requirement as required by the interest of justice. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949) (police officer who had been suspended was required to exhaust administrative remedies). However, the interest of justice is ordinarily best served by requiring the plaintiff to first exhaust administrative remedies; it is only in special circumstances that the interest of justice will require otherwise. 21st Century Amusements, Inc. v. D Alessandro, 257 N.J. Super. 320, 608 A.2d 438, (App. Div. 1992) (when construction official declined to issue certificate of occupancy, plaintiff was required to appeal to Board of Adjustment). Exhaustion of remedies is not required under the following circumstances: 1. The issue to be decided is purely a question of law. 2. There is a need for prompt decision in the public interest. 3. Irreparable harm will result from denial of immediate judicial action. 4. Exhaustion of administrative remedies would be futile. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949). [5] Determining Whether Exhaustion Is Not Required Because Issue Is Purely Question of Law Exhaustion of administrative remedies is not required if the issue to be decided is purely a question of law, for which administrative expertise is unnecessary. Matawan v. Monmouth County Bd. of Taxation, 51 N.J. 291, , 240 A.2d 8 (1968) (borough challenging application and constitutionality of statute apportioning tax burden for school funding not required to exhaust administrative remedies). When an issue is purely legal, the court must make its decision de novo. and may not defer to the administrative agency. Aparin v. County of Gloucester, 345 N.J. Super. 41, 783 A.2d 271 (Law Div. 2000) (issue of whether civil service job specifications created enforceable legal rights was purely legal). If the resolution of a contested legal issue properly brought before a

21 0021 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS 11.10[7] court necessarily turns on factual issues within the special province of an administrative agency, the court should refer the factual issues to that agency. The trial court should accept the factual determinations of the agency and lay them against the legal issues to be resolved and enter its final judgment resolving the mixed questions of law and fact based upon the agency fact finding. Boss v. Rockland Electric Co., 95 N.J. 33, 468 A.2d 1055 (1983) (involving challenge to right-of-way maintenance). Exception: If counsel attacks or defends administrative action solely on a legal basis, counsel must recognize that the court is not bound by the record below. Cell v. Zoning Board of Adjustment, 172 N.J. 75, 796 A.2d 247 (2002). [6] Determining Whether Exhaustion of Administrative Remedies Is Unnecessary Because Enactment Is Challenged as Facially Unconstitutional Judicial review, without exhaustion of administrative remedies, is appropriate when an ordinance or regulation is challenged as unconstitutional on its face. However, when there is an allegation that an ordinance is unconstitutional as applied and factual findings are required, administrative review is appropriate to develop a factual record. If an ordinance is challenged both on its face and as applied, the court may determine the facial challenge and, if the ordinance is facially valid, order the plaintiffs to exhaust their administrative remedies. Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 19 (1975) (court could decide facial challenge to rent control ordinance but plaintiffs were required to exhaust their administrative remedies before court would consider challenge to ordinance as applied). [7] Determining Whether Administrative Remedy Would Be Futile Administrative remedies need not be exhausted if it is apparent that it would be futile to seek relief in an administrative proceeding. Cf. Moore v. International Assoc. of Bridge, etc.,66 N.J. 527, 334 A.2d 1 (1975) (plaintiff union member whose application to transfer had been denied was not required to exhaust administrative remedies within union; other plaintiffs in action had done so unsuccessfully).

22 0022 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: [1] NEW JERSEY PLEADINGS Determining Whether Client Has Standing to Maintain Action in Lieu of Prerogative Writs [1] Determining Whether Individual Client Has Standing to Maintain Action There is broad standing to challenge both quasi-judicial and quasilegislative agency and municipal actions. An action in lieu of prerogative writs may be brought by a person who was a direct party to proceedings before an administrative agency, as well as by any other person whose interests have been affected by the action sought to be challenged. All that is required for standing is a substantial likelihood that the plaintiff will suffer some harm in the event of an adverse decision. As a general rule, any person who has suffered any financial detriment as a result of agency action has standing to challenge that action in court. In re Camden County, 170 N.J. 439, 790 A.2d 158 (2002) (county had standing to appeal disability determination by Public Employees Retirement System, because county had contractual obligation to pay substantial portion of benefit costs). If the case involves a substantial public interest, a person has standing to bring an action in lieu of prerogative writs if he or she has merely a slight private interest. Elizabeth Fed. Sav. & Loan Ass n v. Howell, 24 N.J. 488, 132 A.2d 779 (1957) (banks private interest, when coupled with public interest in preventing failure of banking institutions, was sufficient to confer standing to challenge approval of merger of their competitors). [2] Determining Whether Client Has Standing as Citizen and Taxpayer The courts have recognized a broad right of citizens and taxpayers to seek review of local judicial or legislative action without proof of unique financial detriment. Kozesnik v. Montgomery, 24 N.J. 154, 131 A.2d 1 (1957). Cases in which taxpayers have standing to challenge official action, without the need of proving detriment, have included, but are not limited to, the following: 1. Zoning matters, both quasi-judicial and legislative. Kozesnik v. Montgomery, 24 N.J. 154, 131 A.2d 1 (1957) (community-at-large has interest in integrity of zoning plan sufficient to justify attack on validity of entire zoning district). 2. Cases involving misfeasance, malfeasance, or corruption of local

23 0023 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS 11.11[3] officials. Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 86 A.2d 201 (1952) (citizen may bring suit to enforce obligation of public official to act with honesty and good faith). 3. Cases challenging the legality of bidding procedures for contracts for public services. K. S. B. Technical Sales Corp. v. North Jersey Dist. Water Supply Com., 75 N.J. 272, 381 A.2d 774 (1977) (taxpayer had standing to challenge legality of provisions in water district s bidding specifications). 4. Cases challenging wrongful expenditures of public funds. Theurer v. Borrone, 81 N.J. Super. 188, 195 A.2d 215 (Law Div. 1963) (taxpayer had standing to bring action to prevent payment of pay raises approved by referendum, when there were allegations of voting fraud in connection with referendum). However, a citizen does not have an unlimited right to challenge official action. For example, a citizen does not have standing to enforce a contract provision that would compel the expenditure of public funds, if the citizen is not a party to the contract. Loigman v. Middletown Tp., 297 N.J. Super 287, 687 A.2d 1091 (App. Div. 1997) (taxpayer could not bring action to enforce public sector labor agreement). [3] Determining Whether Party Has Standing to Challenge Regulation A party may have standing to challenge an ordinance or regulation, even if the party failed to participate in the rulemaking process or failed to register a timely objection. In such cases, the party has standing to bring a facial constitutional challenge or to attack the authority of the agency to enact the legislation. In re Six Month Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61, 87, 855 A.2d 582 (App. Div. 2004) (housing activists had standing to challenge COAH s interim certification of municipality s Mount Laurel compliance). The party may not, however, attack the legislation based on evidence that it could have presented during the rulemaking process. Cf. Bergen Pines County Hospital v. New Jersey Dep t of Human Services, 96 N.J. 456, 476 A.2d 784 (1984) (hospital could not challenge agency s rules adopted according to Administrative Procedure Act; hospital failed to raise objections or present evidence during rulemaking process).

24 0024 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: [4] NEW JERSEY PLEADINGS [4] Determining Whether Association Has Standing to Bring Action An association of individuals who allegedly have suffered financial harm as a result of agency action has standing to assert a claim on its members behalf. N.J. Builders Ass n v. Bernards Twp., 108 N.J. 223 (1987) (builders association had standing to litigate on behalf of its members); Medical Soc. of N.J. v. Bakke, 383 N.J. Super. 498, 892 A.2d 728 (App. Div. 2006) (doctor s association had standing to challenge decision of Commissioner of Banking and Insurance approving acquisition of health care insurance provider by another provider, because acquisition could have adverse impact on doctors compensation). [5] Determining Whether Local Governing Body Has Standing to Bring Action A county or local governing body does not have standing to challenge the actions of a government agency on the sole ground that it represents the public and is protecting public interests. However, a governing body has standing if there is a substantial likelihood that it will suffer financial detriment in the event of an adverse decision. In re Camden County, 170 N.J. 439, 790 A.2d 158 (2002) (county had standing to appeal disability determination by Public Employees Retirement System because county had contractual obligation to pay substantial portion of benefit costs).

25 0025 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS PART III: DETERMINING PERIOD IN WHICH ACTION IN LIEU OF PREROGATIVE WRITS MUST BE BROUGHT CHECKLIST: Determining Period in Which Action in Lieu of Prerogative Writs Must Be Brought Determine whether any of the following exceptions to general rule that action must be brought within 45 days after right to review, hearing, or relief accrued is applicable. Action to contest election for approval of school bond. Action to review assessment or award for municipal improvement. Action to review determination of a planning board or board of adjustment. Action to review ordinance authorizing siding or for a public improvement. Action in relation to joint sewer or disposal plant. Action to review decision of a board of chosen freeholders regarding the construction of a building in a highway bed. Action brought under In Rem Tax Foreclosure Act. Action to review sale of land to enforce assessment or tax. Action to contest or set aside tax sale certificate. Action to review an improvement ordinance after award of contract. Action to review resolution or ordinance authorizing issuance of notes or bonds by municipality or other political subdivision. Authority: N.J. Ct. R. 4:69-6(b)(1) - (11). Discussion: See 11.13, 11.14, below. Determine if further review or relief is sought before administrative agency; time period does not begin to run until agency review is completed. Authority: N.J. Ct. R. 4:69-6(b)(1) - (11).

26 0026 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: NEW JERSEY PLEADINGS Discussion: See 11.13, 11.14, below. Determine when to bring action to challenge action by planning board or zoning board. Challenge denial or modification of application within 45 days of first publication or mailing of notice to applicant, whichever is later. Challenge to other actions by planning board or zoning board must be brought within 45 days of first publication of action in newspaper. Ascertain date notice of action is first published, by either agency or applicant. Determine whether published notice meets requirements for valid notice under N.J. Ct. R. 4:69-6(b)(3). Disregard as irrelevant date zoning ordinance is filed with county planning board. Treat zoning board s decision as final, appealable decision, even if further permits must be issued prior to development. Authority: N.J. Ct. R. 4:69-6(b)(3); Cohen v. Thoft, 368 N.J. Super. 338, 845 A.2d 1281 (App. Div. 2004); Adams v. DelMonte, 309 N.J. Super. 572, 707 A.2d 1061 (App. Div. 1998); Island Club Condo. Homeowners Ass n v. City of Atlantic City, 298 N.J. Super. 516, 689 A.2d 865 (Law Div. 1995). Discussion: See 11.14[3] below. Determine whether enlargement of the limitations period is required by interest of justice. Determine whether enlargement should be granted because case falls within judicially-created exception to limitations period. Determine whether case involves important and novel constitutional questions. Determine whether case involves a challenge to informal or ex parte determinations of legal questions by administrative offi-

27 0027 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1446: XPP-PROD Mon Oct 23 17:03: ACTIONS IN LIEU OF PREROGATIVE WRITS 11.13[1] cials. Determine whether case involves important public interests that require adjudication or clarification. Determine whether case involves continuing violation of public rights, such as payments of regular salary to illegally-appointed official. Determine whether enlargement is otherwise required by interest of justice. Consider, for example, whether government official or agency failed to disclose facts that would have led to a timely challenge. Remember that the longer the delay, the less willing the court will be to enlarge the time period. Authority: N.J. Ct. R. 4:69-6(c); Borough of Princeton v. Bd. of Chosen Freeholders of Mercer County, 169 N.J. 135, 152, 777 A.2d 19 (2001); Schack v. Trimble, 28 N.J. 40, 145 A.2d 1 (1958). Discussion: See below Determining Whether Rule 4:69-6 Time Limits Apply to Actions in Lieu of Prerogative Writs [1] Commence Action Within 45 Days of Accrual of Right to Review, Hearing or Relief In general, an action in lieu of prerogative writs must be commenced no later than 45 days after the accrual of the right to the review, hearing or relief claimed. N.J. Ct. R. 4:69-6(a). However, if there is a right to administrative review, and the plaintiff avails himself or herself of that right, the prescribed time limit does not begin to run until the conclusion of administrative review. Schack v. Trimble, 28 N.J. 40, 49, 145 A.2d 1 (1957) (party who diligently pursues administrative remedy has not slumbered on his or her rights and should not be barred from bringing action in lieu of prerogative writs). The time limits for bringing an action in lieu of prerogative writs do not apply when the relief sought is in the nature of mandamus, to compel a public body to perform an act that it allegedly has a continuing duty to perform. Lettieri v. State Bd. of Medical Examiners, 24 N.J. 199, 131 A.2d