Legal Niches

Pay-to-Play Hoboken

By William J. Ward

Pay-to-play remains at the heart of the problem in New Jersey redevelopment and the authorization of eminent domain. Simply put, developers contribute to the campaigns of mayors and council members; and, in turn, the mayor and council designate the developer for the project and use the municipal power of eminent domain to acquire properties needed to assemble the project area. Although New Jersey recently adopted pay-to-play legislation, the piece that would apply specifically to eminent domain has been notably missing in any of the iterations of the proposed eminent domain reform bills to date. See my paper and power point (PDF-2MB) presented last October at  the CLE International seminar on Ethics and Redevelopment in New Jersey.

Yesterday the Appellate Divison of the New Jersey Superior Court issued an important public policy decision in the case People for Open Government v. David Roberts (A-4926-05T1). The opinion of the court was delivered by Judge Harvey Weissbard and approved for publication. The case involves litigation instituted by former residents of Hoboken seeking to compel the Mayor and Council to enforce a municipal ordinance designed to curtail “pay-to-play” where individuals and corporations are awarded municipal contracts as a reward for political contributions. The issue involves a Hoboken ordinance passed on November 2, 2004, which had been placed on the ballot through voter initiative. Among other things, the ordinance restricts political contributors from negotiating or entering into contracts with the city. The Law Division dismissed plaintiffs’ suit based on a conclusion that the plaintiffs lacked standing. The Appellate Division reversed and remanded, concluding that the plaintiffs have a sufficient particularized interest in the enforcement of the ordinance beyond their status as “mere taxpayers.” Download the case here.

The concept of standing refers to a litigant’s “ability or entitlement to maintain an action before the court”. Triffani v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 2001). The “essential purpose” of the standing doctrine in New Jersey is to:

“Assure that the invocation and exercise of judicial power in a given case are appropriate. Further, the relationship of plaintiffs to the subject matter of the litigation and to other parties must be such to generate confidence in the ability of the judicial process to get to the truth of the matter and in the integrity and soundness of the final adjudication. Also, the standing doctrine serves to fulfill the paramount judicial responsibility of a court to seek just and expeditious determinations on the ultimate merits of deserving controversies. [N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm’n, 82 N.J. 57, 69 (1980).]”

The court noted in the opinion that New Jersey law regarding standing was much more liberal than federal law in that New Jersey “remains free to fashion its own law of standing consistent with notions of substantial justice and sound judicial administration.” Solario v. Glaser, 82 N.J 482, 491 (1980). Based on its review of the more liberal New Jersey standard, the court concluded that plaintiffs' standing is readily apparent. The individual plaintiffs were personally involved with the efforts to have Hoboken adopt meaningful pay-to-play legislation; each of the four individual plaintiffs were part of that effort and had an interest in the effective enforcement of the ordinance. Having reached this conclusion, the Appellate panel reversed and remanded the matter to the trial court for further findings consistent with the opinion. To summarize:

..the individual plaintiffs in this case of great public interest have sufficient private interest to confer standing to prosecute this suit. Measuring "plaintiffs' status in the case against the essential purposes of the standing doctrine in New Jersey [which is] to assure that the invocation and exercise of judicial power in a given case are appropriate," we conclude that "the relationship of plaintiffs to the subject matter [is] . . . such to generate confidence in the ability of the judicial process to get to the truth of the matter and in the soundness of the final adjudication." New Jersey State Chamber of Commerce, supra 82 N.J. at 69. Further, according plaintiffs standing in this case "serves to fulfill the paramount judicial responsibility of a court to seek [a] just and expeditious determination [ ] on the ultimate merits of [a] deserving controversy." Ibid. We discern no "counterbalancing consideration," Taxpayers Ass'n of Cape May v. City of Cape May, 19 A-4926-05T1 2 N.J. Super. 27, 32 (App. Div. 1949). Our holding is not likely to "result in a flood of proceedings which will hamper the conduct of the public business." Ibid.; see Crescent Park, supra, 58 N.J. at 107 (citing and quoting Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 872 (D.C. Cir. 1970)).

Because of the individual plaintiffs' standing, the organizational plaintiff, POG, of which they are members, has standing as well. Crescent Park, supra, 58 N.J. at 109-11; Common Cause v. N.J. Election Law Enforce. Comm'n, 74 N.J. 231 (1977).

Full post as published by New Jersey Eminent Domain Blog on January 10, 2008 (boomark / email).