WILLIAM J. BRENNAN v. STEVEN LONEGAN

Annotate this Case

a1767-16.opn.html Original Wordprocessor Version

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1767-16T3

WILLIAM J. BRENNAN, on
behalf of the State of
New Jersey,
APPROVED FOR PUBLICATION
Plaintiff-Appellant/
Cross-Respondent, April 27, 2018

v. APPELLATE DIVISION

STEVEN LONEGAN,

Defendant-Respondent/
Cross-Appellant.
____________________________

Submitted April 17, 2018 – Decided April 27, 2018

Before Judges Reisner, Hoffman and Mayer.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-2169-11.

Law Offices of Donald F. Burke, attorneys
for appellant/cross-respondent (Donald F.
Burke and Donald F. Burke, Jr., on the
brief).

Steve S. Polinsky, attorney for
respondent/cross-appellant.

The opinion of the court was delivered by

HOFFMAN, J.A.D.
This case arises from the qui tam1 complaint filed by

plaintiff William Brennan on behalf of the State, alleging

defendant Steven Lonegan violated the New Jersey False Claims

Act (FCA),
N.J.S.A. 2A:32C-1 to -18, by submitting a false

statement in a request for public campaign funds. Plaintiff

appeals from a November 18, 2016 order granting summary judgment

in favor of defendant. Defendant cross-appeals from an earlier

order denying summary judgment based on standing and

jurisdiction grounds. For the reasons that follow, we affirm

the dismissal of plaintiff's complaint, but on different grounds

than the trial court.2 Specifically, we affirm the grant of

summary judgment because we hold plaintiff lacks standing to

bring the FCA complaint.

Defendant was a candidate for governor in the 2009 New

Jersey Republican primary election. Defendant applied for

public campaign funds pursuant to the New Jersey Campaign

Contributions and Expenditures Reporting Act (the Reporting

1
"Qui tam is short for 'qui tam pro domino rege quam pro se
ipso in hac parte sequitur,' which means 'who pursues this
action on our Lord the King's behalf as well as his own.'"
Rockwell Int'l Corp. v. United States,
549 U.S. 457, 463 n.2
(2007).
2
Notably, "we review orders and not, strictly speaking, reasons
that support them. We have held, in other contexts, that a
correct result, even if predicated on an erroneous basis in fact
or in law, will not be overturned on appeal." El-Sioufi v. St.
Peter's Univ. Hosp.,
382 N.J. Super. 145, 169 (App. Div. 2005).

2 A-1767-16T3
Act),
N.J.S.A. 19:44A-1 to -47. As part of that application,

defendant filed a certification with the New Jersey Election Law

Enforcement Commission (the Commission)3 verifying that "during

the four years prior to the date upon which I became a candidate

for nomination for election to the Office of Governor, I have

not formed, assisted in the formation of, or am not now involved

in any way in the management of an issue advocacy organization

. . . ." The Commission approved defendant for public campaign

funds and he began receiving funds in January 2009.

In February 2009, as the result of a newspaper article, the

Commission authorized an investigation to determine if defendant

"formed, participated in the formation of, or was in any way

involved in the management of the Americans for Prosperity, an

issue advocacy group." At that time, the Commission also

temporarily suspended payment of public campaign funds to

defendant. In March 2009, after completing its investigation,

the Commission advised defendant that "no further action would

be taken on the issue," and resumed defendant's receipt of

public campaign funds.

3
The Commission is a State administrative agency tasked with
enforcing the Reporting Act.
N.J.S.A. 19:44A-6(b). The
Commission is responsible for, among other things, distributing
public campaign funds to gubernatorial candidates.
N.J.S.A.
19:44A-30.

3 A-1767-16T3
On August 18, 2011, plaintiff filed his qui tam complaint,

alleging defendant violated the FCA. On November 3, 2011, the

trial court ordered the complaint unsealed after the State

declined to intervene.

In July 2012, defendant filed his first motion for summary

judgment, asserting both lack of standing and lack of subject

matter jurisdiction. The judge assigned to the case heard oral

argument; however, she did not decide the motion. Almost three

years later, in January 2016, the motion was assigned to a

different judge, who heard renewed oral argument. He then

entered an order denying summary judgment, rejecting defendant's

arguments regarding standing and jurisdiction. The trial judge

found plaintiff had standing, reasoning his complaint was not

entirely based on newspaper articles and provided more detailed

allegations than the articles.

In October 2016, defendant filed a second motion for

summary judgment. The trial court granted that motion,

reasoning there were no disputed issues of material fact

regarding whether defendant knowingly made a false

representation that he did not form or manage an issue advocacy

organization.

Plaintiff appeals from the November 2016 order granting

summary judgment in favor of defendant. Defendant cross-appeals

4 A-1767-16T3
from the January 2016 order denying summary judgment on the

basis of standing and jurisdiction.

We first address defendant's cross-appeal, in which

defendant argues plaintiff lacks standing to bring an FCA

complaint because the Commission already investigated the claim,

and plaintiff has no direct and independent knowledge of the

alleged violation. Because we agree plaintiff lacks direct or

independent knowledge of the alleged FCA violation, we affirm

the grant of summary judgment on the grounds that plaintiff

lacks standing to bring the FCA claim.

We review a ruling on summary judgment de novo, applying

the same standard governing the trial court. Davis v. Brickman

Landscaping, Ltd.,
219 N.J. 395, 405 (2014) (citations omitted).

Thus, we consider "whether the competent evidential materials

presented, when viewed in the light most favorable to the non-

moving party, are sufficient to permit a rational factfinder to

resolve the alleged disputed issue in favor of the non-moving

party." Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of

Am.,
142 N.J. 520, 540 (1995)). "If there is no genuine issue

of material fact, we must then 'decide whether the trial court

correctly interpreted the law.'" DepoLink Court Reporting &

Litig. Support Servs. v. Rochman,
430 N.J. Super. 325, 333 (App.

Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J.

5 A-1767-16T
3 Super. 486, 494 (App. Div. 2007)). We review issues of law de

novo and accord no deference to the trial judge's conclusions on

issues of law. Nicholas v. Mynster,
213 N.J. 463, 478 (2013).

Standing is a question of law we review de novo. Courier-Post

Newspaper v. Cty. of Camden,
413 N.J. Super. 372, 381 (App. Div.

2010) (citation omitted).

The FCA provides a person is liable to the State if he or

she "[k]nowingly presents or causes to be presented to an

employee, officer or agent of the State, . . . a false or

fraudulent claim for payment or approval."
N.J.S.A. 2A:32C-

3(a).

"Claim" means a request or demand, under a
contract or otherwise, for money, property,
or services that is made to any employee,
officer, or agent of the State, or to any
contractor, grantee, or other recipient if
the State provides any portion of the money,
property, or services requested or demanded,
or if the State will reimburse the
contractor, grantee, or other recipient for
any portion of the money, property, or
services requested or demanded. The term
does not include claims, records, or
statements made in connection with State tax
laws.

[N.J.S.A. 2A:32C-2.]

The FCA further provides:

c. No action brought under this act shall
be based upon the public disclosure of
allegations or transactions in a criminal,
civil, or administrative hearing, in an
investigation, report, hearing or audit

6 A-1767-16T3
conducted by or at the request of the
Legislature or by the news media, unless the
action is brought by the Attorney General,
or unless the person bringing the action is
an original source of the information. For
purposes of this subsection, the term
"original source" means an individual who
has direct and independent knowledge of the
information on which the allegations are
based and has voluntarily provided the
information to the State before filing an
action under this act based on the
information.

[N.J.S.A. 2A:32C-9(c).]

Defendant argues plaintiff's complaint is barred under

N.J.S.A. 2A:32C-9(c) because plaintiff lacks any direct

knowledge of the alleged false claims and relies solely on

public information. We find this argument persuasive.

The record clearly shows plaintiff is not the original

source of the information supporting the allegations in his

complaint. Plaintiff based his claim on defendant's filing of

the Commission's form P-2A — a publicly available document. In

his complaint, plaintiff alleges he "has direct and independent

knowledge of [defendant's] participation in Americans For

Prosperity in the four years prior to becoming a candidate for

Governor." However, to support these allegations, plaintiff's

complaint referenced only publicly available information, such

as newspaper articles and government filed forms. In

plaintiff's response to defendant's summary judgment motion,

7 A-1767-16T3
plaintiff again presented only indirect knowledge of defendant's

alleged false act, including newspaper articles, publicly

available forms, and statements from third parties.

Furthermore, we conclude our Legislature did not intend for

the FCA to apply to claims such as plaintiff's. In 1986, the

United States Congress amended the federal False Claims Act, 31

U.S.C. §§ 3729 to 3733, to limit private person complaints to

persons who constitute an "original source" of the information

forming the basis of the claim, when the complaint is based on

information the news media publicly disclosed. 31 U.S.C. §

3730(e)(4)(A)(iii). The United States Supreme Court found the

"original source" language was "an effort to strike a balance

between encouraging private persons to root out fraud and

stifling parasitic lawsuits . . . ." Graham Cty. Soil & Water

Conservation Dist. v. United States ex rel. Wilson,
559 U.S.
280, 295 (2010). In 2008, our Legislature adopted essentially

the same "original source" language for its version of the False

Claims Act. See
N.J.S.A. 2A:32C-9(c). Moreover, Assemblyman

Herb Conaway, Jr. described the FCA to the Assembly's Judiciary

Committee "as New Jersey's whistle blower statute which tracks

the federal law . . . ." State ex rel. Hayling v. Corr. Med.

Servs., Inc.,
422 N.J. Super. 363, 372 (App. Div. 2011). As a

8 A-1767-16T3
result, we conclude our Legislature likewise intended to avoid

"parasitic lawsuits" based on publicly disclosed information.

Plaintiff lacks standing because the matter raised in his

complaint was publicly known, investigated, and decided before

he filed his FCA complaint. Furthermore, we conclude

plaintiff's claim represents the kind of "parasitic" complaint

the Legislature sought to avoid. Accordingly, we affirm the

grant of summary judgment based on lack of standing.

We also agree with defendant that the Commission maintains

jurisdiction over claims arising out of the Reporting Act.

[The Commission] has exclusive jurisdiction
regarding reporting violations because of
the overarching legislative goals of (1)
guaranteeing transparency of campaign
contributions and expenditures, (2) ensuring
that disclosures of the same be managed and
controlled by a single agency, and (3)
implementing remedies for violations of the
Reporting Act through a uniform and
predictable system of sanctions.

[Nordstrom v. Lyon,
424 N.J. Super. 80, 97
(App. Div. 2012).]

Here, plaintiff's complaint alleges a violation of the FCA,

not the Reporting Act; however, the underlying accusation here

is a Reporting Act violation. Plaintiff is not permitted to use

the FCA to circumvent or re-litigate a Commission decision he

disputes. When the Commission made its decision, plaintiff

should have filed an appeal from that decision if he disagreed

9 A-1767-16T3
with it. See N.J. State Chamber of Commerce v. N.J. Election

Law Enf't Comm'n,
82 N.J. 57, 68 (1980) (recognizing that a

slight private interest is sufficient to provide standing when

there is a strong public interest in an issue).

In his appeal, plaintiff argues the trial court erred by

granting summary judgment in favor of defendant because there

are disputed material issues regarding whether defendant falsely

certified he had not participated in an issue advocacy

organization when he applied for public campaign funds. In view

of our determination that defendant lacked standing, we need not

address plaintiff's issue concerning that alleged factual

dispute. Accordingly, we affirm the trial court's November 18,

2016 order granting summary judgment.

Affirmed.

10 A-1767-16T3

This archive is a service of Rutgers School of Law.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.