ENRIQUE URRUTIA v. CITY OF ELIZABETH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2343-08T22343-08T2

ENRIQUE URRUTIA, RANDY WRIGHT,

GRACIELA CARBAJAL, CARLOS

PEREZ, JOSEPH BRUNO, JOSEPH

LAUVANIS, RICARDO LOPEZ, ALFREDO

DARDANO, HERBERT OJEDA, ANTONIO

RODRIGUEZ and JORGE LOPEZ,

Plaintiffs,

and

VICTOR MUNGUIA,

Plaintiff-Appellant,

v.

CITY OF ELIZABETH,

Defendant-Respondent.

______________________________________________________

 

Submitted September 1, 2009 - Decided

Before Judges Messano and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket NO. L-3496-08.

Victor Munguia, appellant pro se.

William R. Holzapfel, City Attorney, attorney for respondent (Raymond T. Bolanowski, First Assistant City Attorney, on the brief).

PER CURIAM

Plaintiff Victor Munguia appeals from the Law Division's order of December 5, 2008 that dismissed with prejudice his complaint against defendant, City of Elizabeth (Elizabeth). We affirm.

The facts are essentially undisputed. Plaintiff is a taxicab driver licensed by Elizabeth and permitted to operate at Terminal A, Liberty International Airport, which is located in Elizabeth. As a result of The Port Authority of New York and New Jersey's desire to increase the number of cabs serving Terminal A, Elizabeth adopted Ordinance No. 3490 (the Ordinance) in 2003. It established a procedure for the issuance of 136 additional "Airport Taxicab Certificates of Public Convenience and Necessity" (certificates). Plaintiff was notified that he would receive one of the certificates that were to be issued to eligible drivers based upon seniority.

In July 2004, before any new certificates were actually issued, a cab driver not eligible to receive one under the Ordinance, Mohamed A. Tawfik, challenged the constitutionality of the distribution scheme. The trial judge initially dismissed his complaint, granting Elizabeth summary judgment. On appeal, however, we reversed and remanded the matter for the development of a more complete record. Mohamed A. Tawfik v. City of Elizabeth, A-6632-04 (App. Div. April 5, 2006). After remand, on June 7, 2007, now-retired Judge Walter R. Barisonek concluded the Ordinance was unconstitutional on equal protection grounds, declared it invalid, and entered judgment in Tawfik's favor.

On October 20, 2008, plaintiff Enrique Urrutia filed a pro se complaint and order to show cause seeking injunctive relief claiming he was entitled to a certificate. On November 7, 2008, plaintiff, along with Urrutia and ten other cab drivers, filed an amended pro se complaint in which they all alleged entitlement to a certificate "under the terms of th[e] Ordinance." They further claimed that Elizabeth's refusal to issue the certificates was a violation of their "equal protection and due process rights under the Federal and State Constitution[s]."

Elizabeth moved to dismiss. It argued that the Tawfik litigation fully decided the constitutionality of the Ordinance, that the doctrine of res judicata applied to that issue, and that plaintiffs, who sought relief based upon the Ordinance, failed to state a cause of action. The City also contended that plaintiffs' claims should be dismissed under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3, because of a lack of notice. Plaintiffs countered by arguing that material facts in dispute precluded judgment on the merits, and that their claim was not foreclosed by the earlier litigation striking down the Ordinance.

In a brief written decision, the motion judge concluded that plaintiffs failed to file a timely notice of claim under the TCA, and further found that pursuant to N.J.S.A. 59:2-5, Elizabeth could not be liable for any damage plaintiffs suffered as a result of its failure to issue a certificate. The judge also noted, "[a]dditionally . . . the statute under which [plaintiffs] claim[] relief is currently considered unconstitutional and, therefore, inoperative." He granted Elizabeth's motion, dismissed the complaint, and entered the order under review.

Before us, plaintiff contends that the notice provisions of the TCA should not bar his claim because he was unaware of the decision in the Tawfik litigation and was never advised by Elizabeth that his certificate was not issued as a result. In this regard, Elizabeth repeats the arguments it raised before the motion judge. However, we need not address the applicability of the notice provisions of the TCA to plaintiff's claim because we agree with Elizabeth and the motion judge that plaintiff had no colorable claim for relief once the Ordinance was declared unconstitutional and inoperative.

The right of a municipality to regulate the licensing of taxicabs within its borders has been long-recognized. See, e.g., Naseef v. Cord, Inc., 90 N.J. Super. 135, 140 (App. Div.), aff'd 48 N.J. 317 (1966). It is axiomatic that plaintiff cannot claim a right that stems from the enforcement of the Ordinance if the legislation itself is unconstitutional.

Plaintiff does not claim, however, that Elizabeth may exercise it police powers in an unconstitutional manner simply because it is to his benefit. Rather, he argues that Judge Barisonek's holding in the Tawfik litigation was limited to only a portion of the Ordinance's certificate distribution scheme, in particular Section 1(E)(1). Because the Ordinance contained a severability clause, his claim, which relied upon another portion of the Ordinance, Section 1(E)(2), remained viable. We disagree.

To adequately consider plaintiff's claim, we must review the classifications created by the Ordinance. The Ordinance permitted the issuance of new certificates in equal numbers to 1) "airport and city owners," i.e., taxicab owners, some licensed to operate at the airport, others not so licensed (Section 1(E)(1)); and 2) "airport and city drivers," i.e., non-owners of cabs who were nonetheless licensed by Elizabeth to drive in the city (Section 1(E)(2)). Under the Ordinance, each "airport and city owner" was to receive one newly-issued certificate with priority determined by seniority; distribution to the drivers was also determined by seniority. The plaintiff in the Tawfik litigation had not accrued enough seniority to be eligible for a newly-issued driver certificate. In deciding the case, Judge Barisonek concluded that Elizabeth failed to demonstrate that any "legitimate governmental interest" was served by differentiating between "owner" applicants, and "driver" applicants.

Plaintiff argues, therefore, that the effect of the Tawfik holding was limited, invalidating only Section 1(E)(1) of the ordinance that guaranteed half of the certificates would be issued to "owners." He claims Judge Barisonek otherwise left intact the distribution of new certificates to drivers, like himself, who qualified based upon seniority. He further contends his cause of action, i.e., to force the issuance of a new certificate to him, was saved by the Ordinance's severability clause.

Regarding the impact of a severability clause upon a municipal ordinance, the Supreme Court has stated:

The essential inquiry is whether the lawmaking body designed that the enactment should stand or fall as a unitary whole. It is not enough that the act be severable in fact; its severability in the event of partial invalidity must also have been within the legislative intention. It is a question of interpretation and of legislative intent whether the particular provision is so interwoven with the invalid clauses as that it cannot stand alone. A severability clause provides a rule of construction which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command. Even where a severability clause has reversed the presumption of an intent that unless the act operate as an entirety it shall be wholly ineffective, the void provisions may so affect the dominant aim of the whole statute as to carry it down with them.

[Inganamort v. Borough of Ft. Lee, 72 N.J. 412, 422 (1977) (quoting State v. Lanza, 27 N.J. 516, 527-28 (1958)) (internal citations and quotations omitted).]

We are convinced plaintiff's reasoning rests upon a cramped view of Judge Barisonek's holding in the Tawfik litigation, and further, that even if the judge was invalidating only a portion of the Ordinance, the severability provision cannot save that portion upon which plaintiff relies for relief.

First, there is no indication in Judge Barisonek's opinion that he was limiting his holding to only Section 1(E)(1) of the Ordinance. Instead, the judge noted that the entire basis for the distribution scheme, i.e., the distinction between owners and drivers, lacked any legitimate governmental purpose. Thus, he expressly considered the Ordinance as a whole.

Second, and perhaps more importantly, the two sub-Sections that create the classification scheme are intrinsically interwoven. The Ordinance was clearly intended to provide a comprehensive scheme for the distribution of all 136 newly-issued certificates by creating two classes of recipients. The members of one class, the owners, were guaranteed access to fully half of the certificates. The members of the other class, the more numerous drivers, were forced to share the other half. Both sub-Sections are contained within one section of the Ordinance. Together, they express the "dominant aim" of the Ordinance, that is, the distribution of the newly-issued certificates.

It follows that by finding the allocation of these valuable certificates to be premised upon a division between owners and drivers that lacked any legitimate governmental purpose, Judge Barisonek was eliminating a critical and significant portion of the comprehensive distribution scheme envisioned by Elizabeth when it enacted the Ordinance. The correctness of Judge Barisonek's conclusion is not before us.

In our view, Elizabeth must be accorded the opportunity to exercise its statutorily-mandated police powers to devise a new, comprehensive distribution scheme by which all certificates will be issued. How it chooses to do so, of course, is not for us to say. In short, the Ordinance's severability clause does not salvage plaintiff's claim for relief.

To the extent we have not specifically addressed the balance of plaintiff's arguments, we find them to be of insufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

Ordinance No. 3490 was adopted after years of litigation that had challenged the distribution scheme contained in a predecessor ordinance, No. 3310.

Elizabeth's motion was opposed only by plaintiffs Urrutia and Perez. There is nothing in the record to indicate that plaintiff ever filed any opposition.

We denied Urrutia's motion to join in plaintiff's appeal. To our knowledge, none of the other plaintiffs have appealed or sought to join in this appeal.

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A-2343-08T2

September 14, 2009