NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5506-06T35506-06T3
JOHN D. CONSTANTINE,
on behalf of himself
and all others similarly
situated,
Plaintiff-Appellant,
v.
TOWNSHIP OF BASS RIVER (improperly
named as Bass River Township), BASS
RIVER TOWNSHIP POLICE DEPARTMENT,
OFFICE OF BASS RIVER TOWNSHIP
MUNICIPAL PROSECUTORS, and all
municipalities, municipal
government authorities similarly
situated,
Defendants-Respondents.
_____________________________________________________________
MUNICIPALITIES OF BOUND BROOK, BRADLEY BEACH,
CARTERET, DUNELLEN, EAST WINDSOR, HELMETTA,
JAMESBURG, KEARNY, METUCHEN, MIDDLESEX MILLSTONE,
MILLTOWN, NEW BRUNSWICK, NORTH BRUNSWICK,
PLAINSBORO, SAYERVILLE, SOUTH AMBOY, SOUTH BOUNDBROOK,
SOUTH PLAINSFIELD, SOUTH RIVER, SPOTSWOOD AND
SPRING LAKE HEIGHTS (HEREAFTER "THE MIDDLESEX JIF
MUNICIPALITIES") CITY OF ASBURY PARK, TOWNSHIP OF
PRINCETON AND BOROUGH OF EAST NEWARK, TOWNSHIP OF
HASBROUCK HEIGHTS, BOROUGH OF TETERBORO,
TOWNSHIP OF CINNAMINSON, BOROUGH OF CALDWELL,
TOWNSHIP OF CEDAR GROVE, TOWNSHIP OF VERONA,
TOWNSHIP OF LITTLE FALLS, TOWNSHIP OF TOWNSHIP OF WEST
CALDWELL, TOWNSHIP OF WEST PATERSON, BOROUGH OF TOTOWA,
TOWN OF GUTTENBERG, BOROUGH OF FREEHOLD, TOWNSHIP
OF FREEHOLD, TOWNSHIP OF CHATHAM, BOROUGH OF KINNELON,
TOWNSHIP OF WEST MILFORD, TOWNSHIP OF MINE HILL, MORRIS
TOWNSHIP, TOWN OF MORRISTOWN, BOROUGH OF NETCONG, TOWNSHIP
OF PEQUANNOCK, TOWNSHIP OF WASHINGTON, TOWNSHIP
OF WARREN, BOROUGH OF ROSELLE PARK, BOROUGH OF POMPTON
LAKES, BOROUGH OF MANTOLOKING, BOROUGH OF RIVERDALE,
BOROUGH OF RINGWOOD, TOWNSHIP OF WAYNE, BOROUGH OF
NORTH HALEDON AND BOROUGH OF WANAQUE, CITY OF NEWARK,
Intervenors-Respondents.
________________________________________________________________
Argued September 24, 2008 - Decided
Before Judges Parrillo, Lihotz and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2378-04.
Sander D. Friedman argued the cause for appellant (Friedman Doherty, LLC, attorneys; Mr. Friedman and Donald M. Doherty, Jr., on the brief).
Thomas M. Barron argued the cause for respondent Township of Bass River (Barron, Baker & Posternock, L.L.P., attorneys; Mr. Barron, on the brief).
Scott E. Rekant argued the cause for intervenors-respondents Municipalities of Bound Brook, Bradley Beach, Carteret, Dunellen, East Windsor, Helmetta, Jamesburg, Kearny, Metuchen, Middlesex, Millstone, Milltown, New Brunswick, Plainsboro, Sayerville, South Amboy, South Boundbrook, South Plainsfield, South River, Spotswood and Spring Lake Heights, "Middlesex JIF Municipalities" (Sokol, Behot & Fiorenzo, attorneys; Mr. Rekant and Steven Siegel, on the brief).
Evelyn R. Storch argued the cause for intervenors-respondents Township of Hasbrouck Heights, Borough of Teterboro, Township of Cinnaminson, Borough of Caldwell, Township of Cedar Grove, Township of Verona, Township of Little Falls, Township of Little Falls, Township of West Caldwell, Township of West Paterson, Borough of Totowa, Town of Guttenberg, Borough of Freehold, Township of Freehold, Township of Chatham, Borough of Kinnelon, Township of West Milford, Township of Mine Hill, Morris Township, Town of Morristown, Borough of Netcong, Township of Pequannock, Township of Washington, Township of Warren, Borough of Roselle Park, Borough of Pompton Lakes, Borough of Mantoloking, Borough of Riverdale, Borough of Ringwood, Township of Wayne, Borough of North Haledon and Borough of Wanaque, (Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, attorneys; H. Curtis Meanor, on the joint brief).
William B. McGuire argued the cause for intervenors-respondents City of Asbury Park, Township of Princeton and Borough of East Newark (Tompkins, McGuire, Wachenfeld & Barry, attorneys; Marianne M. DeMarco, on the joint brief).
Julien X. Neals, Acting Corporation Counsel, Newark Department of Law, attorney for intervenor-respondent City of Newark, joins in the joint brief of intervenors-respondents Township of Cinnaminson, City of Asbury Park, Township of Princeton, and Borough of East Newark.
The opinion of the court was delivered by
MESSANO, J.A.D.
Plaintiff John Constantine paid twenty dollars to obtain three pages of discovery related to a speeding summons issued as he drove through the Township of Bass River (Bass River). He pled guilty to a "non-speed specific driving violation" in the municipal court, but then filed this action on behalf of himself, and others similarly situated, against defendants Bass River, its police department, its municipal prosecutor (collectively, the Bass River defendants), and "all municipalities [and] municipal government authorities similarly situated." Asserting a variety of legal theories, plaintiff alleged that the Bass River defendants and members of the putative defendant class improperly charged excess fees for written discovery in their municipal courts.
After a number of interlocutory orders that we discuss in greater detail below, the trial judge entered an order on January 8, 2008 that denied plaintiff's motion for "bilateral class certification" and dismissed his complaint with prejudice. This appeal followed. Having considered the arguments raised by plaintiff in light of the record and applicable legal standards, we affirm.
I.
This case is a sequel to an earlier, similar class action also brought before the same trial judge in the Law Division, Burlington County. We briefly discuss that matter, Fernandez v. Willingboro Twp., Docket No. BUR-L-003362-03, to provide context to the procedural history of this litigation.
In Fernandez, six similar class action complaints challenging the fees charged to municipal court defendants for discovery were consolidated by consent order. The order further certified a plaintiff class, "defined as all persons that [] since January 19, 2000 . . . [paid] flat fees for [m]unicipal [c]ourt discovery obtained from municipalities constituting the 'Defendant Class.'" The defendant class was "defined as all political subdivisions of the State of New Jersey that [we]re insured by the Municipal Excess Liability Joint Insurance Fund (the MEL-JIF) that have since January 19, 2000 charged flat fees . . . for Municipal Court discovery." "Flat fees" were "defined as the practice of [] charging a single sum for discovery no matter the number of pages provided . . . [or] charging a single sum . . . for [an] initial amount of discovery and a per page charge for each additional page . . . ."
On September 13, 2004, the trial judge entered an order approving settlement of the class action. Six municipalities--the Borough of Closter, the Borough of Ramsey, the City of Cape May, the Borough of Ridge Park, the Borough of Beachwood and the Township of Clark--though insured by the MEL-JIF, opted out of the class action settlement. In total, the remaining Fernandez settling defendant class consisted of 352 political subdivisions of this State.
Pursuant to the settlement, members of the defendant class agreed to modify their municipal court discovery practices. Effective September 30, 2004, they adopted a uniform schedule of fees to be charged for paper discovery: $.75 for pages one through ten; $.50 for pages eleven through twenty; and $.25 for all pages thereafter. The defendant class members also agreed to impose a "mailing charge" limited to the cost of actual postage, plus $.25. Pursuant to the settlement, members of the plaintiff class who paid in excess of the new fee structure would be reimbursed the difference.
In the interim, on August 23, 2004, represented by the same counsel that prosecuted the Fernandez matter, plaintiff filed his complaint challenging the discovery fees assessed by the Bass River defendants and a putative class of 216 other municipalities. The complaint alleged that the defendant class charged fees in excess of OPRA, "the Right to Know Law," and the "common law right to know doctrine"; that plaintiff had been deprived of various Federal and State constitutional rights resulting in violations of 42 U.S.C.A.