CHARLES CARTER MORGAN v. SHING-FU HSUEH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4108-10T3

CHARLES CARTER MORGAN,

Member, West Windsor Township

Council,

Plaintiff-Appellant,

vs.

SHING-FU HSUEH, Mayor, West

Windsor Township,

Defendant-Respondent.

__________________________________

December 2, 2011

Argued: October 13, 2011 - Decided:

Before Judges Cuff, Waugh, and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-200-10.

Charles Carter Morgan, appellant, argued the cause pro se.

Harold N. Hensel argued the cause for respondent (Secare, Ryan & Hensel, attorneys; Mr. Hensel, on the brief).

PER CURIAM

The Township of West Windsor (the Township) has adopted the Mayor-Council Plan of Government pursuant to Article 3 of Chapter 69A of the Optional Municipal Charter Law, N.J.S.A. 40:69A-31 to -48, also known as the Faulkner Act. Plaintiff Charles Carter Morgan is an elected member of the Township Council; defendant Shing-Fu Hsueh is the elected Mayor of the Township. Plaintiff filed a complaint seeking a declaratory judgment regarding the manner in which, and when, the Mayor is required to respond to a request for information posed to the Mayor by a member of the Council. Holding that the matter was moot, the judge granted defendant's motion for summary judgment and dismissed the complaint. The judge also denied plaintiff's motion for reconsideration. Plaintiff appeals both orders; we affirm.

As discussed in a treatise on local government in New Jersey, the form of government adopted by the municipality is important because it informs the distribution of power among the legislative, executive, and administrative officers of the municipality. 34 New Jersey Practice, Local Government Law 5.1, at 82 (Michael A. Pane, Jr.) (4th ed. 2007). Under modern forms of governmental organization, such as the Mayor-Council form of government in the Township, administrative and executive responsibility usually rests with an elected mayor and legislative authority rests with an elected council. Id. at 5.1 at 83-84.

The Mayor-Council plan of government is governed by N.J.S.A. 40:69A-31 to -48. Article 3 recognizes the principle of separation of powers and distributes the executive and legislative authority between the mayor and the council. N.J.S.A. 40:69A-32b. To that end, the mayor and administrative officers are assigned various responsibilities, including preparation and submission of a budget and presentation of the budget to the council, N.J.S.A. 40:69A-40e, for consideration and adoption by the council, N.J.S.A. 40:69A-36. The council exercises the legislative power of the municipality, N.J.S.A. 40:69A-36, and it also has broad authority to investigate almost any matter within the scope of its municipal legislative authority, N.J.S.A. 40:69A-36c. In addition, an individual council member may request information from the mayor regarding any aspect of government of the municipality. N.J.S.A. 40:69A-37.1. This statute, which is at the heart of the present appeal, provides that "[a]ny council member may, at any time, require a report on any aspect of the government of the municipality by making a written request to the mayor."1 Ibid.

In an October 27, 2009 email, plaintiff submitted a request to defendant for information about the upcoming budget. He wrote as follows:

Pursuant to Section 4-12C of the Township Code, this is my written request requiring that you provide a report regarding the alternative submittals to be presented at the November 4 meetings as set forth in the Notice attached to the email appended below.

Specifically, this request requires a report whether you will receive zero-based budget submittals, as well as the alternative scenarios discussed at the October 21 Council meeting that should accompany a zero-based budget submittal, during all of the meetings listed in that Notice.

In the event that no alternatives will be presented at that time, this request requires that your report list the zero-based and other budget alternatives that will accompany your recommended budget for 2010 when you submit it to Council.

Your written report should be submitted on or before November 4, 2009 so that it can be taken into account during the discussion of the proposed zero-based budget policy scheduled for the November 9 Council meeting.

Alleging that he did not receive any response to this request, plaintiff filed a complaint on January 21, 2010, in which he sought a declaratory judgment that defendant's silence violated N.J.S.A. 40:69A-37.1 and Section 4-12 of the Township Code. He also sought an order requiring a response to plaintiff's request from defendant.

Defendant responded that he addressed plaintiff's concerns at several Council meetings after plaintiff submitted his October 27, 2009 request, but plaintiff did not attend some of those meetings. Then, on February 17, 2010, the Business Administrator responded to plaintiff's October 27, 2009 request on behalf of the Mayor and the Township Administrator. He stated:

Since the October 21 Council meeting, the Mayor and I have given verbal reports at open Council meetings concerning the progress of compiling the budget submissions for Council's consideration. As you are aware, I also provided to Council the directive from the Division of Local Finance that the budget submission to Council would be delayed until March 19th.

At subsequent Council meetings, some of which you were not able to attend, the Administration explained that it would be providing one budget, rather than a "zero based budget submission" or other alternatives. The four other members of Council accepted this recommendation and that is how we intend to proceed.

As advised previously, we will meet the March 19 deadline for the 2010 municipal budget submission to Council and subsequently also provide potential alternatives for Council to consider in eliminating various services and other costs to reach a zero based budget level. Council will then have the opportunity to select those alternatives if they choose to do so. As I mentioned at last night's meeting, the major problem is not the projected expenditures, rather the significant loss of anticipated revenue coupled with the current uncertainty of receiving State aid at levels experienced in previous years.

Plaintiff responded by filing an amended complaint in which he alleged that defendant ignored three written requests made between February 22 and 24, 2010. Plaintiff sought a declaratory judgment that defendant had violated the statute and code provision previously cited. He further sought a declaratory judgment declaring that any response to a written request must be authored by the Mayor in writing within a reasonable time but no more than two weeks from the date of the request by the member of council.

In response to cross-motions for summary judgment,2 Judge Hurd held that the issues presented by plaintiff were moot because defendant had responded to his request for information. He also held that the plain language of N.J.S.A. 40:69A-37.1 does not require a written response or stipulate a deadline for any response. The judge reasoned that having received a response, any further consideration of the issue was moot, and the absence of a pending request would involve rendering an advisory opinion on the issue of when the Mayor must respond. Judge Hurd also denied plaintiff's motion for reconsideration.

On appeal, plaintiff contends that his request for declaratory relief precludes dismissal based on mootness. Furthermore, he contends the motion judge did not correctly interpret the statute, material issues of fact precluded summary judgment in favor of defendant, the judge erred by concluding that the complaint presented a non-justiciable political question, and his motion for reconsideration should have been granted.3 We disagree.

Plaintiff argues that his request for a declaratory judgment permits, indeed mandates, that a judge adjudicate the dispute presented in the complaint notwithstanding action taken during the course of the litigation that would ordinarily render the matter moot. Defendant responds that a declaratory judgment still requires a justiciable controversy, and the matter was moot as soon as the Business Administrator responded to plaintiff's October 2009 request.

The Uniform Declaratory Judgments Act (the Act), N.J.S.A. 2A:16-50 to -62, empowers courts to declare rights, status and other legal relations in order "to afford litigants relief from uncertainty and insecurity." Chamber of Commerce of the U.S.A. v. State of N.J., 89 N.J. 131, 140 (1982). A person whose rights or legal relations are affected by legislation may ask the courts to determine the validity of that legislation. Ibid. (citing N.J.S.A. 2A:16-53). However, in order to maintain a declaratory judgment action, the plaintiff must be able to demonstrate a justiciable controversy between adverse parties, and a sufficient interest in the outcome of the dispute to confer standing. In re Ass'n of Trial Lawyers of Am., 228 N.J. Super. 180, 183-84 (App. Div.), certif. denied, 113 N.J. 660 (1988). Stated differently, the Act "'cannot be used to decide or declare rights or status of parties upon a state of facts which are future, contingent and uncertain.'" Chamber of Commerce, supra, 89 N.J. at 140 (quoting Lucky Calendar Co. v. Cohen, 20 N.J. 451, 454 (1956)). To do so, transforms the declaratory judgment remedy to a prohibited advisory opinion. Re/Max of N.J., Inc. v. Wausau Ins. Cos., 304 N.J. Super. 59, 64 (Ch. Div. 1997), aff'd, 316 N.J. Super. 514 (App. Div. 1998), aff'd, 162 N.J. 282 (2000).

Similarly, a judge may refrain from issuing a declaratory judgment if the dispute has been resolved by the parties. See Brown v. Pica, 360 N.J. Super. 490, 491 (App. Div. 2003) (dismissing appeal due to party settlement); R. 2:8-2. To be sure, a judge may proceed to address the legal issue, if the issue is likely to recur. Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996). Whether a judge should proceed, however, is a fact-sensitive decision and vested in the discretion of the judge. See ibid. (explaining courts will decide such appeals "[o]n occasion"); see also Kuehne Chem. Co. v. N. Jersey Dist. Water Supply Comm'n, 300 N.J. Super. 433, 443 (App. Div.) (explaining courts "may" address such appeals), certif. denied, 151 N.J. 466 (1997).

Here, Judge Hurd held that a response to a request for information from a member of council need not be in writing and must be provided within a reasonable time. He also noted that what may constitute a reasonable time is determined by the circumstances of each case. Having found that defendant responded to plaintiff's request in writing and orally on several occasions, the judge determined that "at this point there is nothing for me to decide." The judge also acknowledged that plaintiff wished guidance for the future but considered such a request tantamount to a request for an advisory opinion due to the fact-sensitive nature of the subsequent inquiries.

We agree with this determination. Once plaintiff received a written response to his October 2009 request for information, the central issue in the litigation was moot. Plaintiff had received the information he requested and all the relief he could expect to receive in this action. It served no purpose for the court to address possible future requests for information and whether the response must be in writing and the outer limits of when a member of council may expect an answer, particularly when the nature and complexity of any future requests were not known.

Following entry of summary judgment in favor of defendant, plaintiff filed a motion for reconsideration and a motion to amend his complaint. Judge Hurd denied each motion. As to the motion to amend the complaint, the judge noted that plaintiff removed reference to the second, third and fourth requests for information and that plaintiff confined his request for relief on a response to his initial request received only after he filed his complaint. Finding that the proposed amended complaint did nothing more than seek a declaration that his prior ruling was in error, the judge denied relief.

In addressing the motion for reconsideration, Judge Hurd expressly disagreed with plaintiff's position that a judge lacks the discretion to dismiss a declaratory judgment action, even if it does not present a justiciable controversy. We discern no basis to disturb this order.

We, therefore, affirm the February 18, 2011 order granting defendant's motion for summary judgment and the April 1, 2011 order denying plaintiff's motion for reconsideration and his motion to amend the complaint.

1 The authority to investigate and to seek information to discharge the legislative function bestowed on the council in a mayor-council form of government is similar to the authority of the Senate and General Assembly to investigate and receive information. N.J.S.A. 52:13-1 provides that a legislative committee has the power to compel attendance before it of persons as witnesses and the production of documents deemed necessary to its investigation. In addition, many statutes require reports to be submitted to the Legislature. See, e.g., N.J.S.A. 52:13C-23b and f (requiring the Election Law Enforcement Commission to submit periodic reports to the Legislature and Governor); N.J.S.A. 52:14-17.27 (requiring the State Health Benefits Commission to submit an annual report of its yearly fiscal expenditures).

2 Plaintiff's motion focused on his initial request for information.

3 On appeal, plaintiff again focuses only on his initial request. The second, third, and fourth requests in his first amended complaint are not addressed. We, therefore, consider these issues abandoned. 539 Absecon Blvd., L.L.C. v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 n.10 (App. Div.) (deeming issues not brief on appeal "abandoned"), certif. denied, 199 N.J. 541 (2009). Judge Hurd also did not invoke political question as a basis to deny plaintiff relief. We do not consider issues presented for the first time on appeal. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).