In re Complaint filed by Deptford Township (5-15)(Docket #: COLM-0003-15)
PROCEDURAL HISTORY
Complaint filed. On May 4, 2015, via email, a Complaint was filed by the Solicitor of the Township of Deptford, Douglas M. Long, Esq., on behalf of Paul Medany, Mayor of Deptford Township, in which it is alleged that N.J.S.A. 40A:14-118.1, imposes an unfunded mandate in violation of N.J. Const. Art. VIII, Sec. 2, Para. 5(a) and N.J.S.A. 52:13H-2, which states that every new or used municipal police vehicle purchased, leased, or otherwise acquired on or after the effective date of P.L. 2014, c. 54 (C.40A:14-118.1 et al.) which is primarily used for traffic stops shall be equipped with a mobile video recording system is an unfunded mandate. A summary of the Deptford Township's Complaint may be viewed under Pleading Summaries.
To view the full version of the Deptford Township Complaint, please click here.
Council publication. Because of the identity of the issue raised, the Council ordered that the complaint should be served on the Attorney General, the Department of Law & Public Safety, and the officials listed in Council Rule 9a. The Council also determined that the Attorney General would be directed to file an Answer to the Complaint, and that any other official served with the Complaint that chose to do so might file an Answer, as Respondent.
By letter of June 8, 2015, the Complaint was circulated to the above-mentioned officials, and the letter also provides a schedule of due dates for filings of pleadings, including:
- Answer(s) directed to the Complaint (June 11, 2015).
- Respondent Motion(s) directed to the Complaint (June 25, 2015).
- Claimant response(s) to such Motions (July 9, 2015).
Respondent's Answer and Motion to Dismiss. On June 11, 2015, an Answer and a Motion to Dismiss the Complaint was filed on behalf of Respondent, State of New Jersey, Department of Law and Public Safety, via hand-delivery. A summary of that pleading may be viewed under Pleading Summaries.
To view the full version of the Respondent's Answer and Motion to Dismiss, please click here.
Request to Appear as Amicus Curiae. On June 25, 2015, a Request to Appear as Amici Curiae in this proceeding was filed by the
A Summary of the filed request may be accessed by clicking on the name of the Requester.
Respondent's Reply Letter in Support of its Motion to Dismiss. On July 17, 2015, a Reply Letter in Support of its Motion to Dismiss the Complaint was filed on behalf of Respondent, State of New Jersey, Department of Law and Public Safety, via Overnight Mail. A summary of that pleading may be viewed under Pleading Summaries.
To view the full version of the Respondent's Reply Letter in Support of its Motion to Dismiss, please click here.
Council approves amici request. By e-mail dated July 21, 2015, the Council notified all parties that the Council voted and approved the Request filed on behalf of the New Jersey State League of Municipalities, to Appear as Amici Curiae in this matter.
Council issues Notice of Hearing. On July 11, 2015, via email, the Council informed all interested parties in their Notice of Hearing in the Deptford Township Matter, of the date, time and location of the scheduled hearing (see below).
Date/Time of Hearing: September 29, 2015, at 10:00 a.m.
Place of Hearing: Committee Room 1, 1st floor, State House Annex, Trenton, NJ.
Purpose of Hearing: To hear oral argument on the State's Motion to Dismiss.
PLEADING SUMMARIES.
This portion of the site reproduces summaries, written by parties and amici, of their pleadings, as they are filed with the Council, beginning with the filed Complaints. The summaries do not represent the views of the Council; they are provided to facilitate understanding of the positions reflected in the pleadings.
Complete copies of all filed pleadings may be obtained by contacting the Council office as described under Address & Telephone.
Claimant Deptford Township's Summary of Complaint:
Deptford Township seeks a Council on Local Mandates ruling that N.J.S.A. 40A:14-118.1 imposes an unfunded mandate in violation of N.J. Const. Art. VIII, Sec. 2, Para. 5(a) and N.J.S.A. 52:13H-2.
N.J.S.A. 40A:14-118.1 states: "Every new or used municipal police vehicle purchased, leased, or otherwise acquired on or after the effective date of P.L. 2014, c. 54 (C.40A:14-118.1 et al.) which is primarily used for traffic stops shall be equipped with a mobile video recording system. As used in this section, ‘mobile video recording system' means a device or system installed or used in a police vehicle or worn or otherwise used by an officer that electronically records visual images depicting activities that take place during a motor vehicle stop or other law enforcement action."
P.L. 2014, c. 54 also amends N.J.S.A. 39:4-50, increasing the surcharge imposed on persons convicted of driving while intoxicated by $25.00. the $25.00 increase to the surcharge is payable to the municipality in which a conviction of driving while intoxicated is obtained, to be used by the municipality for the cost of equipping police vehicles with mobile video recording systems.
The Deptford Township Police Department recently acquired six patrol vehicles on or around the date upon which N.J.S.A. 40A:14-118.1 came into effect. If N.J.S.A. 40A:14-118.1 is deemed applicable to Deptford Township's acquisition of the six new patrol vehicles, Deptford Township would be liable for the direct expenditures necessary to implement the statute because the New Jersey State Legislature failed to appropriate funds when it passed N.J.S.A. 40A:14-118.1. If Deptford Township purchases vehicle mounted cameras, it would initially cost the Township $49,483.07. Alternatively, if Deptford Township purchases cameras worn by individual officers, it would initially cost the Township $63,483.00.
N.J.S.A. 40A:14-118.1 creates an unfunded liability for Deptford Township because the State Legislature failed to appropriate resources to offset the initial direct expenditures required to implement the statute. N.J.S.A. 52:13H-12. In order for Deptford Township to implement N.J.S.A. 40A:14-118.1, the direct expenditures that would be necessary include, but are not limited to, the purchase of hardware, software licensing, limited warranty costs, installation costs, upgrades to the local server and local data storage as well as ongoing system maintenance and IT support. Further, vehicle mounted mobile recording systems are estimated by the vendor to become obsolete every four years, necessitating additional replacement expenditures shortly after paying for the initial cost of incorporating a mobile recording system onto the six patrol vehicles Deptford Township recently acquired.
The estimated revenue from the increased surcharge imposed on individuals convicted of driving while intoxicated will be grossly inadequate in covering these costs. According to the Deptford Township Chief Financial Officer, if the Township were to rely solely upon the $25.00 increase to the surcharge, it would take approximately 7.58 years to recuperate the first year's cost of implementing a vehicle mounted camera system. Relying solely on the increased surcharge in order to purchase cameras worn individually by each officer, it would take approximately 28.21 years to recuperate the first year's cost of implementing a body worn camera system.
Thus, Deptford Township would be liable for the expenditures mandated by N.J.S.A. 40A: 14-118.1 because the State failed to appropriate funds when it passed the statute. Therefore, N.J.S.A. 40A:14-118.1 is an unfunded mandate, in violation of N.J. Const. Art. VIII, Sec. 2, Para. 5(a) and N.J.S.A. 52:13H-2. Deptford Township prays the Council on Local Mandates deem N.J.S.A. 40A:14-118.1 an unfunded mandate, thus causing the statute to cease to be mandatory in its effect and to expire.
The above summary is a quotation from the Complaint filed by Douglas M. Long, Solicitor for the Township of Deptford, on behalf of the Township of Deptford, on May 8, 2015.
Respondent, State of New Jersey, Department of Law and Public Safety Summary of Answer and Motion to Dismiss the Complaint:
The statute in issue, N.J.S.A. 40A:14-118.1, mandates that every new or used municipal police vehicle purchased, leased or otherwise acquired on or after March 1, 2015, that is primarily used for traffic stops, shall be equipped with a mobile video recording system. Deptford contends that the statute is an unfunded mandate, causing the municipality to incur additional direct expenditures for implementation. However, Deptford has not demonstrated that the law imposes a mandate applicable to the vehicles it "acquired" in this case.
Moreover, enactment of this statute was accompanied by an amendment to N.J.S.A. 39:4-50, which provides funding for the municipalities' costs of acquiring video recording systems through an increase in the surcharge issued to persons convicted of driving while intoxicated ("DWI"). Therefore this mandate, in effect, is not unfunded Deptford, in fact, admits that the mandate is funded, but contends that the funding is inadequate. The Council however is not empowered to determine the sufficiency of the funding, and Deptford's claim is, therefore, beyond the Council's purview.
Accordingly, the Council should grant the State's motion to dismiss the complaint and deny Deptford's request for injunctive relief.
The above summary is a quotation from the Answer and Motion to Dismiss the Complaint filed by Cameryn J. Hinton, Deputy Attorney General, on behalf of the State of New Jersey, Department of Law and Public Safety, on June 11, 2015.
Respondent's Reply Letter in Support of its Motion to Dismiss:
It is undisputed that the Council must "proceed with great caution when considering requests for summary disposition" given the finality of the Council's decisions. In the Matter of a Complaint filed by Ocean Township and Frankford Township, August 2, 2002 at 5 (hereinafter "Ocean-Frankford"). However, Deptford's complaint must be dismissed as it is irreparably deficient and no disputed material fact stands in the way of the Council so finding.
Claimant and Amicus Curiae, The New Jersey State League of Municipalities (the "League"), erroneously argue that the Deptford complaint has satisfied all three prongs required to establish an unconstitutional unfunded mandate in regard to N.J.S.A. 40a:14-118.1. Simply put, the complaint cannot survive without evidence that Deptford is subject to the statute's mandate. Hence, Deptford's opposition first seeks to narrowly define the statute's conditional clause "or otherwise acquired" to preserve the complaint. Deptford essentially admits that the direct reading of the statute mandating patrol vehicles "purchased, [or] leased" after the March 1, 2015 effective date would impair Deptford's claim because its vehicles were purchased prior to the effective date. (DR3)[1]. Deptford seeks to preserve its claim by attaching its own factual circumstances to the plain interpretation of the statute. Deptford's complicated reading of "or otherwise acquired"- a term used as a catch-all provision to describe means of attaining possession or control of something through means other than those previously stated in a number of other effective statutes- is meritless. See e.g. P.L. 1995, c.145 ("For the purposes of this act, ‘domestic companion animal' means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law, for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes.") (emphasis added); N.J.S.A. 5:10-14.4 (Notwithstanding the provisions of P.L. 1947, c. 71, in the event that the convention hall or halls or convention center project, including the site of a convention hall or convention center project to be constructed, located in any municipality which levies a luxury tax pursuant to such law, shall be purchased, leased or otherwise acquired by the New Jersey Sports and Exposition Authority . . . .") (emphasis added). N.J.S.A. 40A:14-118.1 embodies this catch-all provision as a clear and obvious means of ensuring that additional means of acquiring a patrol vehicle, besides through a purchase or lease, induce the municipalities' compliance with the mandate.
Deptford argues that the "otherwise acquired" clause-which serves as one of the conditions of the statute's application-requires that "acquired" be strictly defined as attaining physical possession and control after having already satisfied the "purchased, [or] leased" conditions. (DR3). Deptford argues that no other interpretation is feasible without rendering the "or otherwise-acquired" clause superfluous. Ibid. However, contrary to the "well-established principle of statutory construction that a statute must be read in its entirety and, if possible, full effect should be given to every word of statute", Deptford fails to consider the full effect of the statutory language. Ocean-Frankford at 10 (citing Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969)).
Read comprehensively, the phrase "or otherwise acquired" is defined by Merriam-Webster dictionary as, "in a different way or manner" "to get as one's own". Merriam-Webster Dictionary available at http://www.merriam-webster.com/dictionary/otherwise and http://www.merriam-webster.com/dictionary/acquired, last accessed on July 14, 2015. This comprehensive definition simply does not support Deptford's interpretation that "acquired" merely defines the possession or control accomplished by the preceding conditions. Such an interpretation would render the conditional language "purchased, [or] leased" superfluous making physical possession and control the superseding and absolute condition. Therefore, the language of the statute disallows any interpretation that the mandate applies under any other condition apart from the municipality having purchased, or leased, or by other means attain the same level of possession or control of a patrol vehicle after March 1, 2015. Considering the plain language interpretation of the statute, Deptford's complaint must be dismissed for the fact that the first prong of establishing that the statute imposes a mandate on Deptford cannot be met.
Next, Deptford attempts to preserve its additional direct expenditure claim by arguing that even if the six new patrol vehicles are not subject to the mandate, Deptford predicts its future costs of complying with the statute will not be completely offset by the authorized funding. Deptford has not shown any present additional direct expenditures to implement the statute and the amount of authorized statutory funding available for Deptford's use to implement the mandate at some point in the future is indeterminable. The only means of determining that Deptford has shown an additional direct expenditure requires the Council to exceed the parameters of its authority. Necessarily, in order for Deptford to satisfy the additional direct expenditures prong, Deptford must first have the Council find the legislature failed to authorize adequate funding.
Deptford and the League rely on the Council's decisions in In the Matter of Complaint Filed by the Mayors of Shiloh Borough et el., October 22, 2008 (hereinafter "Shiloh") and In the Matter of a Complaint Filed by Ocean Township and Frankford Township, August 2, 2002, (hereinafter "Ocean-Frankford") to support the contention that the Council's authority to determine the constitutionality of an unfunded mandate, necessarily allows it to find N.J.S.A. 40A:14-118.1 unfunded despite the statute's authorized funding. Essentially, Deptford is requesting the Council to determine the adequacy of the authorized statutory funding. Granting Deptford's request requires impermissible extension of the Council's authoritative parameters as outlined by N.J.S.A 52:13H-12(a). As the Council has previously stated "the obvious purpose of this legislative provision . . .is to prevent the Council from becoming involved in fiscal policymaking". Shilor, at 11. The Council does not overwrite legislative fiscal findings or forecast complex schemes to detect remote possibilities that a municipality would incur additional direct expenditures implementing a statutorily funded mandate.
In Ocean-Frankford, the Council granted the State's Motion to Dismiss after finding the claimants failed to show an unfunded mandate existed since it was clear that the amended statute had authorized funding through fee collection at the discretion of the municipality. Ocean-Frankford, at 14. In further explanation the Council stated that the "[l]egislature had met its obligation to authorize a resource other than the property tax to fund the mandate." Deptford, however, relies on Ocean-Frankford to leverage the Council's position that the Council will not give "blind deference to the Legislature's method of funding the costs of a mandate, if that method id seriously flawed to the point of being illusory." Ocean-Frankford, at 12. Deptford argues that the authorized funding for N.J.S.A. 40A:14-118.1 is illusory and thus the Council may determine the adequacy of the statute's funding. Nevertheless, just as the Council found in Ocean-Frankford, it is apparent in the present case that the Legislature authorized funding and thus the Legislature has met its burden. Furthermore, the amount authorized cannot be deemed illusory because the amount of funding available at a given time is indeterminable and the statute does not reveal a definitive disparity between the mandate's funding and costs- unlike the funding the Council determined inadequate in Shiloh.
Deptford attempts to further its argument that the Council may scrutinize the adequacy of authorized funding by comparing the funding schemes of Shiloh and N.J.S.A. 40A:14-118.1. However, not only are the facts surrounding these statutory mandates dissimilar, the Council's determination in Shiloh also did not bear solely on inadequacy of funding. Shiloh, at 12.
Shiloh raised issues with the conditional appropriation of funds for State police protection for rural municipalities which had previously been provided without conditions in the yearly Appropriations Act. Shiloh, at 5. Specifically, the Fiscal Year 2009 Appropriations Act implemented a condition requiring the municipalities to obtain some of the financial burden of utilizing the State Police. Ibid. The Council found that the statute itself defined the actual unfunded mandate imposed on the effected municipalities since the statute only authorized a portion of the funding the municipalities would need according to the State's past expenditures. Shiloh, at 12 ("There would be little substance in the constitutional ‘State mandate/ State pay' directive if the legislature could avoid it by expressly electing to provide a specified partial amount of funding by the local units"). Consequently, the Council was able to explain that finding the funding inadequate on its face did not violate N.J.S.A. 52:13H-12 (a) because the Council was not "second-guessing legislative judgment about the adequacy of the legislative funding, but simply recognizing the explicit terms and the acknowledged consequences of the legislation." Shiloh, at 11.
In the instant matter, however, N.J.S.A. 40A:14-118.1 is a directive for an entirely novel program and is accompanied by authorized funding for the cost of implementation with no exceptions or definitive funding to cost disparities. The Council would indeed have to second-guess the legislative funding in order to determine that the mandate is unfunded as Deptford pleads. Unlike Shiloh, the plain language of the statute does not contemplate any additional direct costs to the municipalities. In fact, the costs to the municipalities are entirely unforeseeable. While financial forecasting could contemplate the amount a particular municipality may need to meet the obligations of the mandate, the Council would have to employ an expertise outside its statutory authority to find an unfunded mandate in regard to the current complaint.
Furthermore, Deptford's irreparably deficient complaint renders its request for injunctive relief entirely impermissible. Deptford has not shown it will incur additional direct expenditures as a result of the mandate and consequently, will not suffer irreparable harm, nor be denied any legal right at the denial of injunctive relief. Moreover, Deptford admits that its new patrol vehicles were purchased prior to the statute's effective date and thus, there are no material facts in controversy. Accordingly, neither party faces imminent hardship at the denial of injunctive relief because Deptford has failed to claim being subject to the mandate at issue pursuant to N.J.S.A. 52:13H-1 et seq.
For the reasons set forth above, the State respectfully requests that its Motion to Dismiss Deptford's Complaint be granted and Deptford's application for injunctive relief be denied.
The above summary is a quotation from the Reply Letter to Motion to Dismiss the Complaint filed by Cameryn J. Hinton, Deputy Attorney General, on behalf of the State of New Jersey, Department of Law and Public Safety on July 17, 2015.
[1] "DR" shall refer to Deptford's Response.
