CHRISTOPHER OBCHINETZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHRISTOPHER OBCHINETZ and

PAULA MARCHICA, on behalf

of themselves and all other

similarly situated,

Plaintiffs-Appellants,

v.

MAPLE SHADE TOWNSHIP and the

TOWNSHIP OF EVESHAM, in their

own rights and on behalf of

similarly situated New Jersey

municipal entities,

Defendants-Respondents.

________________________________________________

ArguedApril 28, 2015 DecidedJune 24, 2015

Before Judges Messano, Hayden and Tassini.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2576-10.

David A. Avedissian argued the cause for appellants.

John C. Gillespie argued the cause for respondents (Parker McCay, P.A., attorneys; Stacy L. Moore, Jr., of counsel; Mr. Gillespie, on the brief).

PER CURIAM

The Law Division entered an order in March 2012 granting summary judgment to defendants, the Township of Maple Shade (Maple Shade) and the Township of Evesham (Evesham) (collectively, defendants), and dismissing the putative class action complaint filed by plaintiffs Christopher Obchinetz and Paula Marchica. The same order denied plaintiffs' cross-motion for summary judgment.

Plaintiffs subsequently moved to amend the March 2012 order, seeking an award of counsel fees, despite the dismissal of their complaint. Defendants cross-moved for counsel fees. For reasons unexplained by the record, there was a delay in consideration of the motion and cross-motion. However, on April 9, 2014, the judge entered two orders denying counsel fees to plaintiffs and defendants.

Plaintiffs appeal the dismissal of their complaint and the denial of an award of fees. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

The tortuous procedural history requires some explication. On February 25, 2008, Obchinetz pled guilty in Maple Shade Municipal Court to violating Section 142-2(A) of the Maple Shade Township Code, entitled "Public Intoxication," which provided

No person shall be intoxicated or drunk or disorderly in any . . . public or quasi-public place . . . or while upon any private property not his or her own without the express permission of the owner or other person having authority to grant such permission to the annoyance of any person or be so intoxicated or drunk as to be unable to conduct himself or herself with due care for his or her safety or the safety of other persons.

[(Emphasis added).]

He was fined $206 and ordered to pay court costs of $33.

On July 1, 2008, Obchinetz filed a putative class action complaint against Maple Shade in federal district court.1 The complaint alleged that the New Jersey Alcoholism Treatment and Rehabilitation Act (ATRA), N.J.S.A. 26:2B-1 to -40, pre-empted or effectively repealed Maple Shade's ordinance, as well as similar ordinances in hundreds of New Jersey municipalities. We digress briefly to discuss ATRA's salient provisions.

One of ATRA's expressed public purposes is to assure "that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages, but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society." N.J.S.A. 26:2B-7. To that end, ATRA provides that

Notwithstanding any other provision of law, no county, municipality, or other jurisdiction within the State shall adopt an ordinance, resolution, or other legislation creating an offense of public intoxication or any equivalent offense, and any existing ordinance, resolution, or other legislation creating such an offense is hereby repealed.

[N.J.S.A. 26:2B-29 (emphasis added).]

In his complaint, Obchinetz alleged that his arrest and prosecution violated his federal and state constitutional rights, the New Jersey Civil Rights Act (the CRA), N.J.S.A. 10:6-1 to -2, and the common law. On October 15, 2008, Maple Shade repealed the disputed portion of its ordinance.

On October 28, 2009, the district court judge granted Maple Shade's motion to dismiss the complaint, concluding it did not "state a claim for the invasion of a federally protected right," or a claim under 42 U.S.C.A. 1983 (Section 1983). The judge declined to exercise jurisdiction over Obchinetz's "state law claims." Obchinetz sought review before the Third Circuit Court of Appeals.

While that appeal was pending, on January 29, 2010, plaintiffs filed a putative class action complaint in the Law Division, Burlington County, alleging similar causes of action as contained in the federal lawsuit. Evesham, where Marchica resided, was named as a defendant because it too had a municipal ordinance in effect that allegedly violated ATRA. Marchica had never been arrested or prosecuted for violating the ordinance.2

Defendants moved to dismiss on the grounds of comity, or, alternatively, they sought to stay the state court proceedings pending resolution of the appeal in the Third Circuit. On June 21, 2010, the Law Division judge dismissed the complaint without prejudice due to the pending federal appeal. On June 22, 2010, Evesham repealed the challenged portion of its ordinance.

On June 26, 2010, Obchinetz withdrew his appeal to the Third Circuit, although the appeal continued as to McMullen.3 Apparently, plaintiffs sought to "reinstate" their previously dismissed complaint. On July 25, 2010, the Law Division judge issued an order that did not permit plaintiffs to reinstate their complaint, but rather permitted them to "re-file and re-serve their complaint within [thirty] days."

On August 2, 2010, Obchinetz and Marchica filed the instant putative class action complaint in the Law Division against Maple Shade and Evesham. Obchinetz alleged his arrest and prosecution for violation of Maple Shade's ordinance was in violation of the CRA. Individually and on behalf of a proposed class of similarly situated people, he sought declaratory relief, disgorgement and restitution of all penalties and costs Maple Shade collected by enforcing the ordinance and counsel fees under the CRA and "common law." Marchica alleged Evesham's ordinance violated ATRA, and she sought declaratory relief and injunctive relief to bar future enforcement. Defendants filed answers and subsequently moved for summary judgment. Plaintiffs cross-moved as to liability only.

In an oral opinion that followed arguments, the judge, who was not the judge previously managing the case, reasoned that ATRA preempted both defendants' ordinances, but she recognized that both ordinances had been repealed and therefore declaratory relief was unavailable. Considering Obchinetz's allegations, the judge stated

It was not until after the arrest that the issue of the validity of the . . . ordinance was raised. . . . Obchinetz pleaded guilty. In order to succeed in a false arrest and false imprisonment case you have to show that the complaint was resolved in your favor, and . . . Obchinetz simply can't show that.

The judge concluded that Obchinetz was required to seek any relief, including the return of any fines and costs paid for the ordinance violation, in the municipal court. She entered a conforming order on March 14, 2012.

Plaintiffs promptly moved to amend the judgment to include an award of counsel fees and costs, arguing they were prevailing parties in the litigation under the CRA. Defendants filed a cross-motion for attorneys' fees and costs.4 On April 9, 2014, the judge denied both motions. The judge's written statement of reasons provided,

It cannot be said that . . . [p]laintiffs[] prevailed in this matter. By the time the [m]otions were heard, the Maple Shade Ordinance had been repealed for approximately [three] years and the Evesham Township Ordinance had been repealed for [sixteen] months. Further I am unable to conclude from . . . the [m]otion record on the [s]ummary [j]udgment [m]otions that . . . [p]laintiffs[] were responsible for the repeal o[f] either . . . of those ordinances. For my purposes, this litigation . . . began in August, 2010 after the [f]ederal litigation was concluded. In August, 2010, neither Maple Shade nor Evesham [] had an ordinance prohibiting public intoxication.

Plaintiffs filed this appeal.

II.

We set forth plaintiffs' contentions on appeal based upon the point headings contained in their brief, which, parenthetically, does not contain a single citation to any decision from any jurisdiction. Obchinetz argues his arrest was "illegal and unlawful," and, therefore, the grant of summary judgment to Maple Shade on his CRA claim was improper. He also argues that, having found ATRA preempted the Maple Shade ordinance, the judge should have permitted, at the least, reimbursement of his fines and costs without the need to vacate his conviction via a petition for post-conviction relief (PCR) in the municipal court.

Both plaintiffs also contend that their request for declaratory relief was not rendered moot by the repeal of each municipality's ordinance. Lastly, plaintiffs argue the judge should have awarded them counsel fees as prevailing parties.

A.

We affirm the dismissal of Marchica's claims and the declaratory relief sought by Obchinetz against Maple Shade because the issues presented when the complaint was filed were moot. "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) (citing Jackson v. Dep't of Corr., 335 N.J. Super. 227, 231 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001)). "An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009) (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotation marks omitted), certif. denied, 201 N.J. 153 (2010).

In their complaint, each plaintiff sought relief declaring the respective ordinances void and enjoining further enforcement. When the complaint was filed, both municipal ordinances had already been repealed. Although the complaint was filed as a putative class action, the class was never certified. The judge properly concluded any decision she rendered on these claims would have no practical effect. We affirm.

B.

Obchinetz alleged his arrest and prosecution for violating Maple Shade's repealed ordinance gave rise to a cognizable claim for violation of the CRA, as well as the common law tort of "false arrest/imprisonment." Maple Shade argues, as it did in the Law Division, that the cause of action, however styled, was barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). We agree.5

The Court has said that "probable cause is an absolute defense to [a] [p]laintiff's false arrest, false imprisonment . . . claims, and . . . Section 1983 claims." Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000). We have repeatedly recognized that a claim brought under the CRA is analogous to a claim brought under Section 1983. Filgueiras v. Newark Public Sch., 426 N.J. Super. 449, 468 (App. Div.), certif. denied, 212 N.J. 460 (2012); Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (2011). Obviously, Obchinetz's guilty plea effectively waived any challenge as to probable cause for his arrest. State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988).

In Heck, supra, the United States Supreme Court decided "whether a state prisoner may challenge the constitutionality of his conviction in a suit for damages under [Section] 1983." 512 U.S. at 478, 114 S. Ct. at 2368, 129 L. Ed. 2d at 389. The Court held

[A Section] 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus . . . . A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under [Section] 1983.

[Id. at 486-87, 114 S. Ct. at 2372, 129 L. Ed. 2d at 394.]

In applying Heck to a section 1983 claim, we have said that a court "must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Bustamante v. Borough of Paramus, 413 N.J. Super. 276, 290 (App. Div. 2010) (quoting Heck, supra, 512 U.S. at 487, 114 S. Ct. at 2372-73, 129 L. Ed. 2d at 394).

Although Bustamante dealt with common law tort claims and a violation of section 1983, id. at 282, and not a claim under the CRA, we see no principled reason why Heck should not apply in this case, since, as already noted, the CRA is patterned upon Section 1983. If successful, Obchinetz's collateral challenge to his conviction in municipal court "would necessarily imply the invalidity of his conviction or sentence." Id. at 290 (quoting Heck, supra, 512 U.S. at 487, 114 S. Ct. at 2372, 129 L. Ed. 2d at 394).

We recognize the factual scenario raised by this case is slightly different from those presented by Heck, Bustamante, and, indeed, most cases that have applied the Heck doctrine. In other words, Obchinetz challenges the legal validity of Maple Shade's ordinance in the first instance, not the facts that led to his arrest and prosecution. Nonetheless, plaintiff has cited no authority for the proposition that this distinction makes a difference, and we found none in our independent research. This is not surprising, since a defendant challenging the validity of an ordinance or statute would most likely raise that challenge in the first instance during the proceedings that led to his conviction. Obchinetz never did.

Moreover, Obchinetz had the ability to raise such a challenge after his 2008 guilty plea, and before, or even after, he filed any of his civil complaints. See R. 7:10-2 (providing for PCR relief in the municipal court upon filing a petition within five years after the entry of the judgment of conviction). This was the essence of the judge's conclusion that Obchinetz failed to avail himself of relief in the municipal court, and therefore could not collaterally attack in this civil suit the validity of his conviction.6

In sum, we affirm the dismissal of Obchinetz's complaint.

C.

Lastly, we consider plaintiffs' challenge to the 2014 order denying their request for counsel fees. As the Law Division judge noted and plaintiffs concede, the ordinances in both municipalities had already been repealed when plaintiffs filed their complaint. We gather, however, from the statement of reasons filed by the judge and from plaintiffs' argument before us, that they contended a counsel fee award was appropriate under the fee-shifting provisions of the CRA because their complaint was a "catalyst" for the repeal of the ordinances. See N.J.S.A. 10:6-2(f) (providing for, in addition to other relief, an award of reasonable attorney's fees and costs for "the prevailing party").7

We have recognized the "catalyst" theory as a basis for an award of counsel fees under the CRA. Jones v. Hayman, 418 N.J. Super. 291, 309 (App. Div. 2011); D. Russo, Inc. v. Twp. of Union, 417 N.J. Super. 384, 386 (App. Div. 2010). As Judge Skillman explained,

Under the catalyst theory, as described by our Supreme Court . . ., a litigant will qualify as a "prevailing party" entitled to an award of attorney's fees under a fee-shifting statute if the lawsuit "achieves the desired result because [it] brought about a voluntary change in the defendant's conduct." In the absence of a judgment or enforceable consent decree, the catalyst theory entitles a plaintiff to an award of attorney's fees if it "can demonstrate: (1) a factual causal nexus between plaintiff's litigation and the relief ultimately achieved; and (2) that the relief ultimately secured by plaintiffs had a basis in law."

[D. Russo, supra, 417 N.J. Super. at 389-90 (quoting Mason v. City of Hoboken, 196 N.J. 51, 72, 76 (2008) (citations omitted).]

In D. Russo and Jones, the plaintiffs were potentially prevailing parties under this two-step analysis because they had secured some form of "relief" in the actual lawsuit that gave rise to the counsel fee request. In D. Russo, supra, 417 N.J. Super. at 387, the plaintiffs challenged the constitutionality of a municipal ordinance which, during the course of the proceedings, was repealed. In Jones, supra, 418 N.J. Super. at 297, 304-05, the plaintiffs obtained preliminary injunctive relief and class certification before the defendant's actions rendered moot any further claims made by the plaintiffs.

Here, however, plaintiffs obtained no declaratory or injunctive relief as a result of the complaint filed in August 2010, nor could they have obtained such relief, because the two ordinances at issue had already been repealed. Plaintiffs seemingly argue that their prior complaints in federal court and in the Law Division, which were dismissed, provide grounds for awarding them counsel fees in this case, but there is no authority for such a proposition.

Plaintiffs also contend that because their prior complaints seeking declaratory and injunctive relief on their CRA claims were dismissed without prejudice there was no "finality" to their pursuit, and therefore no basis for them to seek an award of counsel fees. However, this misstates the essence of our catalyst theory jurisprudence. Under the catalyst theory, prevailing parties are entitled to a fee award, not based upon a juridical decree terminating the litigation in their favor, but rather upon demonstrating "a factual causal nexus between [their] litigation and the relief ultimately achieved,[] and that the relief ultimately secured by plaintiffs had a basis in law." Mason, supra, 196 N.J. at 76 (citation omitted).

Without reaching the merits of the issue, we take note of the fact that plaintiffs perhaps could have made such a showing at an earlier point in time regardless of the dismissal of their prior complaints. Nevertheless, the inescapable facts are that when this complaint was filed and served, plaintiffs could secure none of the declaratory or injunctive relief they sought because the ordinances at issue had already been repealed.

Affirmed.

1 We have not been provided with Obchinetz's original complaint, or a subsequent amended complaint that included another individual, Joseph McMullen, as a plaintiff. We describe the thrust of plaintiff's complaint by reference to the district court judge's written decision granting Maple Shade's motion to dismiss, which we discuss below.

2 An amended complaint filed in March 2010 added McMullen as a plaintiff.

3 The district court's dismissal was eventually affirmed. See McMullen v. Maple Shade Twp., 643 F.3d 96, 101 (3rd Cir. 2011).

4 In her written statement of reasons, the judge stated that defendants sought "the same relief." The record contains a copy of defendants' notice of cross-motion, but, since there was no oral argument and the judge's statement of reasons did not explain why she denied defendants' request, we are unsure what basis defendants asserted as justification for an award of fees.

5 We also note that the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, applies to any common law intentional tort claim made against a public employee or entity. Velez v. City of Jersey City, 180 N.J. 284, 286 (2004). There is nothing in the record reflecting that Obchinetz served any notice of claim upon Maple Shade. We further note that the statute of limitations for plaintiff's common law tort claim and CRA claim was two years, see N.J.S.A. 2A:14-2, and this complaint was filed more than two years after Obchinetz's arrest and guilty plea.

6 In his reply brief, Obchinetz argues for the first time that he did not need to set aside his conviction before proceeding on his collateral claim for damages because N.J.S.A. 2B:12-32 recognizes an independent basis for relief. That statute provides, "[u]pon a court ruling that a municipal ordinance is unconstitutional . . . the municipality shall refund any fines, penalties or court costs paid by any person arrested, charged or convicted of violating the ordinance." We refuse to consider a claim first raised in a reply brief. See Feliciano v. Faldetta, 434 N.J. Super. 543, 547 (App. Div. 2014). Moreover, it is debatable whether Maple Shade's ordinance was "unconstitutional," or even whether, despite the Law Division's judge's rumination to the contrary, it violated ATRA. See McMullen, supra, 643 F.3d at 100 (noting it was unclear whether Maple Shade's ordinance was preempted by ATRA, since "[i]t d[id] not prohibit simple public intoxication").

7 For reasons already explained, Obchinetz could not be a "prevailing party" as to his substantive claims for relief in the form of damages or disgorgement of fines and penalties.