STATE OF NEW JERSEY VS. MAYOR DWAYNE D. WARREN, ESQ. (2017-017, ESSEX COUNTY AND STATEWIDE) ( 2018 )


Menu:
  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5499-16T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    MAYOR DWAYNE D. WARREN, ESQ.;
    HON. DONNA K. WILLIAMS; HON. KERRY
    J. COLEY; HON. TENCY A. EASON; HON.
    HAROLD J. JOHNSON, JR.; HON.
    CHRISTOPHER JACKSON; HON. JAMIE
    SUMMERS-JOHNSON; and HON.
    ADRIENNE WOOTEN,
    Defendants.
    ____________________________________
    Submitted July 23, 2018 – Decided August 9, 2018
    Before Judges Whipple and Suter.
    On appeal from Superior Court of New Jersey,
    Law Division, Essex County, Municipal Appeal
    No. 2017-017.
    Jeffrey S. Feld, appellant pro se.
    Robert D. Laurino, Acting Essex County
    Prosecutor, attorney for respondent (Frank J.
    Ducoat, Special Deputy Attorney General/
    Acting Assistant Prosecutor, of counsel and
    on the brief).
    PER CURIAM
    Complainant Jeffrey S. Feld, Esq., appeals from a July 5,
    2017 order of the Law Division denying a municipal appeal for a
    lack of probable cause determination and dismissal of his citizen-
    complaints.      For the following reasons, we affirm.
    On October 18, 2016, the Orange Township City Council (the
    Council) voted on and passed resolution 333-2016, confirming the
    appointment of several individuals, including the Mayor's brother,
    to various jobs in the Township. The resolution passed in a closed
    Executive Session.
    Feld attempted to place a statutory Open Public Meetings Act
    (OPMA), N.J.S.A. 10:4-6 to 10:4-21, objection on the public record
    because   he    alleged     the    resolution    passed       without    reasonable
    community      notice    and   opportunity      to    be    heard.      Feld     filed
    complaints in Orange City Municipal Court against: Mayor Dwayne
    D. Warren, Esq., the Honorable Donna K. Williams, the Honorable
    Kerry J. Coley, the Honorable Tency A. Eason, the Honorable Harold
    J. Johnson, Jr., the Honorable Christopher Jackson, the Honorable
    Jamie Summers-Johnson, and the Honorable Adrienne Wooten, all
    elected city officials in Orange Township.                 The complaints charged
    defendants     with     official   misconduct        in    violation    of   N.J.S.A.
    2                                      A-5499-16T4
    2C:30-2.    On December 2, 2016, Feld signed complaint-summonses
    against six1 of the original eight defendants.
    On January 4, 2017, the municipal court judge conducted a
    probable   cause     hearing     pursuant    to   Rule    3:3-1,      where        a
    representative for defendants was present but not permitted to
    participate.   Feld argued defendants violated the OPMA, N.J.S.A.
    10:4-9, and the State Constitution because no public notice and
    opportunity to be heard was afforded on the resolution.               The judge
    determined Feld did not exhaust available remedies under the OPMA
    and did not secure the assent of the prosecutor's office to serve
    as   a   private    prosecutor.       Consequently,      the       judge     found
    insufficient probable cause to establish criminal complaints under
    N.J.S.A. 2C:30-2 against defendants and dismissed the complaint.
    On January 14, 2017, Feld moved for reconsideration or in the
    alternative,   an    order     designating   himself     as    a    prosecuting
    attorney for the limited purpose of perfecting an appeal of the
    January 4 dismissal.     On March 17, 2017, the judge heard argument
    1
    On January 4, 2017, Feld withdrew his complaints against the
    Honorable Harold J. Johnson, Jr., and the Honorable Christopher
    Jackson.   He asserted that, after the events leading to the
    resolution at issue, the Council "adopted a new policy and
    procedure regarding walk-on resolutions" and that these two
    members were the leading force behind the change. These members
    were the only "nay" votes during the adoption of resolution 333-
    2016.
    3                                    A-5499-16T4
    on   Feld's    motion      for   reconsideration.              After    no   substantive
    argument or colloquy, the judge addressed Feld, saying:
    Counselor,   I'm  designating    you  as   the
    complainant, the person who wants to make the
    complaint. I'm not appointing you as special
    prosecutor. I believe that you have certain
    standing in that matter. If you think I made
    a procedural error or an error as to law as
    opposed to fact, I . . . want you to file that
    appeal[.]
    . . . .
    I have no problem at all with you filing an
    appeal in this matter, or a reconsideration,
    or trying to get some judge of a higher level
    to reconsider what we did.
    On   March    24,    2017,    the    judge       signed   an    order    granting     Feld
    "Prosecuting Attorney Appellate Designation."
    On     March   30,     2017,   Feld    appealed      the    dismissal      of    his
    complaint to this court.             The Appellate Division Clerk forwarded
    Feld's papers to the Law Division because, pursuant to Rule 3:24,
    plaintiff was required to initially file in that forum.
    On June 30, 2017, the parties, including Feld, defendants'
    counsel, and an Assistant Prosecutor, appeared before the Law
    Division judge for a hearing on the municipal appeal.                         On July 5,
    2017, after reviewing the submissions and hearing oral argument,
    the judge denied Feld's municipal appeal under Rule 3:23-9(d) for
    lack of standing.          This appeal followed.
    4                                   A-5499-16T4
    When considering a decision of the Law Division settling a
    municipal appeal, we consider whether there is sufficient credible
    evidence in the record to uphold the findings of the Law Division,
    not the municipal court.       State v. Johnson, 
    42 N.J. 146
    , 162
    (1964).     Like the Law Division, we do not make new credibility
    findings.     State v. Locurto, 
    157 N.J. 463
    , 470 (1999).   Instead,
    we defer to the trial court's credibility findings.         State v.
    Cerefice, 
    335 N.J. Super. 374
    , 383 (App. Div. 2000).    However, "a
    trial court's interpretation of the law and the legal consequences
    that flow from established facts are not entitled to any special
    deference."     Manalapan Realty v. Manalapan Twp. Comm., 
    140 N.J. 366
    , 378 (1995) (citations omitted).      Our interpretation of the
    Rules, and of standing, are legal issues, which are subject to de
    novo review.    N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 
    453 N.J. Super. 272
    , 291 (App. Div. 2018) (citing NAACP of Camden Cty.
    E. v. Foulke Mgmt. Corp., 
    421 N.J. Super. 404
    , 444 (App. Div.
    2011)).
    Feld argues the Law Division judge erred by not deferring to
    the municipal judge's order granting him prosecuting attorney
    status.     We disagree.   Under Rule 3:24, only a defendant or the
    prosecuting attorney may appeal from an order of a court of limited
    jurisdiction, and such appeal must be made first to the Superior
    5                          A-5499-16T4
    Court, Law Division.      Municipal courts are courts of limited
    jurisdiction.    See N.J.S.A. 2B:12-1.
    On January 4, 2017, the municipal judge found insufficient
    probable cause to issue criminal summonses against defendants, and
    effectively   dismissed   Feld's   complaint.     We   have   previously
    instructed "an adverse ruling as to probable cause, warranted or
    otherwise, cannot be appealed by any person except a 'prosecuting
    attorney.'"   State v. Bradley, 
    420 N.J. Super. 138
    , 143 (App. Div.
    2011). Feld attempts to distinguish Bradley, asserting the offense
    he charged against defendants was a second-degree crime, whereas
    in Bradley, the charge was merely a disorderly persons offense.
    It is a distinction without a difference.        In Bradley, we said,
    "only prosecutors, as defined in the court rules, are authorized
    to act in cases that may result in incarceration or other penalties
    of magnitude."    
    Id. at 142.
    Here, Feld did not obtain assent from either the municipal
    prosecutor or the county prosecutor.          Feld asserts since the
    prosecutor was on notice of his application, and did not file
    opposition or appear at the municipal hearings, the prosecutor
    implicitly assented to his application, waived any objections, and
    should be equitably estopped from objecting now.          We disagree,
    "[t]he doctrine [of equitable estoppel] is 'rarely invoked against
    a governmental entity . . . .'"        McDade v. Siazon, 
    208 N.J. 463
    ,
    6                             A-5499-16T4
    480 (2011) (quoting Cnty. of Morris v. Fauver, 
    153 N.J. 80
    , 104
    (1998)).   Moreover, the prosecutor's representative was present
    at the hearing before the Law Division, and asserted unequivocally,
    "[Feld] does not have our assent to prosecute this appeal."            The
    language of Rule 3:23-9(d) implies express assent must be obtained,
    not that there must be "no objection."       "The State, and only the
    State, can appeal a dismissal, . . . and a citizen, including the
    complainant, who has not been designated 'private prosecutor,'
    does not have standing."    State v. Vitiello, 
    377 N.J. Super. 452
    ,
    455-56 (App. Div. 2005) (citing State v. Carlson, 
    344 N.J. Super. 521
    , 525-26 (App. Div. 2001)).
    Feld's   other   arguments   are   without   sufficient   merit    to
    warrant discussion in a written opinion.      R. 2:11-3(e)(2).
    Affirmed.
    7                             A-5499-16T4