KATHLEEN A. DONOVAN v. BERGEN COUNTY BOARD OF CHOSEN FREEHOLDERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KATHLEEN A. DONOVAN, County

Executive of Bergen County,

Plaintiff-Respondent,

and

BERGEN COUNTY POLICE PBA

LOCAL 49,

Plaintiff/Intervenor-

Respondent,

v.

BERGEN COUNTY BOARD OF

CHOSEN FREEHOLDERS,

Defendant-Appellant,

and

JOHN S. HOGAN, County Clerk

of Bergen County,

Defendant-Respondent.

____________________________________

IN RE RESOLUTION NUMBER 1167-12

"REQUEST TO THE COUNTY CLERK TO

SUBMIT A NONBINDING REFERENDUM

BALLOT" BY THE BERGEN COUNTY

BOARD OF CHOSEN FREEHOLDERS, AND

ORDINANCE NUMBER 12-27, "AN

ORDINANCE DISSOLVING THE BERGEN

COUNTY POLICE DEPARTMENT," BY

THE BERGEN COUNTY BOARD OF

CHOSEN FREEHOLDERS.

____________________________________

May 30, 2014

Before Judges Reisner, Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6255-12.

Richard Malagiere argued the cause for appellant (The Law Offices of Richard Malagiere, attorneys; Mr. Malagiere, of counsel and on the briefs; Leonard E. Seaman, III and Joseph P. Kreoll, on the briefs).

Thomas P. Scrivo argued the cause for respondent Kathleen A. Donovan, County Executive of Bergen County (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Scrivo, of counsel; James J. DiGiulio and Lawrence S. Cutalo, on the brief).

Leon B. Savetsky argued the cause for respondent Bergen County Police PBA Local 49 (Loccke Correia Limsky & Bukosky, attorneys, join in the brief of respondent Kathleen A. Donovan, County Executive of Bergen County).

PER CURIAM

In 1972, the Legislature enacted the Optional County Charter Law (Charter Law), N.J.S.A. 40:41A-1 to -149, that allows counties to select from a variety of forms of government, including the county executive plan. Bergen County adopted the county executive form of government in 1986. Accordingly, it is "governed by an elected board of freeholders and an elected county executive . . . ," N.J.S.A. 40:41A-32(a), and "the term 'governing body' of the county shall be construed to include both the board of freeholders and the county executive." N.J.S.A. 40:41A-32(b). Also, "[f]or the purpose of the construction of all other applicable statutes, any and all administrative or executive functions . . . shall be exercised by the county executive, and any and all legislative and investigative functions . . . shall be exercised by the board," in accordance with the separation of powers provided for under the Charter Law. N.J.S.A. 40:41A-32(b).

On August 1, 2012, the Bergen County Board of Freeholders (Freeholders) held a scheduled, regular meeting. During the public work session for the meeting, the Board proposed resolution 1167-12 and ordinance 12-27. Resolution 1167-12 would have placed on the November 2012 general election ballot a non-binding referendum to merge the Bergen County Police Department with the Bergen County Sheriff's Department. If enacted, ordinance 12-27 would have dissolved the county police, transferred their functions, powers, duties, and responsibilities to the sheriff, and amended Bergen County's Administrative Code to delete sections related to the county police. Previously, the issue of consolidating the county police and the sheriff's department had been the subject of studies, and significant political debate in the county.

Two freeholders objected that they had received the proposed resolution and ordinance just minutes before the work session that preceded the August 1, 2012, meeting. They left in protest, so the Board lacked a quorum to hold a public meeting. The Board chairman acknowledged the lack of a quorum and noted that the next "regularly scheduled" meeting was September 12, 2012, but "chances are that we will call a Special Meeting."

Thereafter, on August 6, 2012, a special meeting was called for August 10, 2012, with notice provided under the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. The notice stated, in pertinent part, that: "pursuant to the Open Public Meetings Act, the Bergen County Board of Chosen Freeholders will conduct a SPECIAL MEETING for consideration of any issues that may properly come before the Board including adoption of all items from the August 1, 2012 meeting agenda that are displayed on the county website . . . ." The agenda for the August 10, 2012, meeting indicated that the Board would consider resolution 1167-12, "Resolution authorizing to submit a Non-binding Referendum to the voters of Bergen County," and a first reading of ordinance 12-27, "An Ordinance Dissolving the Bergen County Police Department."

At the August 10, 2012, special meeting, the Freeholders passed resolution 1167-12, and approved a first reading of ordinance 12-27. The Freeholders provided the resolution to the County Clerk on August 13, 2012.

The Bergen County Executive, Kathleen Donovan, opposed the plan to merge or disband the county police department. On August 16, 2012, she filed suit in the Law Division seeking an order invalidating resolution 1167-12 and enjoin and restrain its implementation, to invalidate the first reading of ordinance 12-27, and a declaratory judgment that the resolution and ordinance were void and/or ultra vires.

On September 7, 2012, following argument the previous day, the court issued an oral opinion and order invalidating the resolution and directing the County Clerk to exclude the referendum question from the ballot. The court denied the County Executive's request to invalidate ordinance 12-27, finding that issue was not ripe for adjudication since the ordinance had not yet been adopted. In any event, on October 3, 2012, the Freeholders rejected ordinance 12-27 upon its second reading.

The Freeholders appeal that portion of the trial court's judgment that invalidated its resolution to submit to county voters a non-binding referendum question regarding whether the Bergen County Police Department should be merged with the Bergen County Sheriff's Department. The Board challenges the court's alternative rulings, (1) that the resolution was invalid because it had not been approved by the county's "governing body," which consisted of both the County Executive and the Freeholders; and (2) that the resolution was invalid because it was adopted at a special meeting rather than a regular meeting of the Board.

In response, the County Executive supports the trial court's ruling. Moreover, she argues that the Freeholders' appeal is moot because no effective relief can be granted, since the resolution called for a non-binding referendum to be placed on the November 2012 general election ballot, and that election has occurred without inclusion of the referendum question. Also, the Freeholders ultimately were unsuccessful in passing ordinance 12-27.

"Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). "[O]ur courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993). An issue has become moot "when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.Y. Susquehanna & W. Ry. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985); see also Betancourt, supra, 415 N.J. Super. at 311 (declining to address the merits of a dispute regarding the authorization of medical treatment that had become moot).

The doctrine of mootness emanates from the judiciary's unique institutional role as a branch of government that only acts when a genuine dispute is placed before it. We generally do not render advisory decisions retrospectively opining about the legality of matters that have already been resolved, for "[o]rdinarily, our interest in preserving judicial resources dictates that we not attempt to resolve legal issues in the abstract." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996).

In limited instances, courts will address the merits of appeals that have become moot, electing to do so "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review." Ibid.; see also Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998); In re Conroy, 98 N.J. 321, 342 (1985).

Guided by these principles, we decline to reach the substantive issues presented, since we agree with the County Executive that the referendum dispute is moot. Because the 2012 general election has already occurred, a determination on the validity of resolution 1167-12 would have no practical effect. Importantly, also, the Freeholders failed to pass the ordinance that accompanied the resolution, and seemingly have also abandoned their effort to place this non-binding referendum before the voters. Essentially, the Freeholders at this stage seek an advisory opinion as to future referendums, the procedural and substantive contexts of which are not before us. We decline to do so, and accordingly dismiss the appeal as moot.

Dismissed.