In re Complaint filed by Blairstown Township (12-10).
PROCEDURAL HISTORY.
Complaint filed. On December 21, 2010, via First Class mail, a Complaint was filed by the Clerk of Blairstown Township, which allege that New Jersey State Appropriation Act P.L. 2010, C. 35 is an unfunded mandate. A summary of the Township of Blairstown Complaint may be viewed under Pleading Summaries.
To view the full version of the Blairstown 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 State of New Jersey Attorney General and on the officials listed in Council Rule 9a. The Council also determined that the State of New Jersey 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 December 23, 2010, the Complaint was circulated to the above-noted officials, and the letter also provides a schedule of due dates for filings of pleadings, including:
- Answer(s) and any Motions directed to the Complaint (January 22, 2011).
- Claimant response(s) to such Motions (February 11, 2011).
- Requests to Appear as Amicus Curiae (February 18, 2011).
- Objections to Requests to Appear as Amici Curiae (February 25, 2011).
Answer and Motion to Dismiss. On January 21, 2011, an Answer and a Motion to Dismiss the Complaint was filed on behalf of Respondent State of New Jersey. A summary of that pleading may be viewed under Pleading Summaries.
Request for extension to file Claimants' brief. On January 28, 2011, via letter from Robert J. Benbrook, Esq., on behalf of the Claimant, Township of Blairstown, a Request for an extension to file the Claimants' brief in opposition to the State's Motion to Dismiss was requested for a period of 14 business days. To view the full version of the letter, please click here.
Council's response to Claimants' request for extension to file brief. On January 31, 2011, via email, the Council informed the Claimant, Township of Blairstown, and all interested parties, that it would grant the request for an extension to file the Claimants' brief in opposition to the State's Motion to Dismiss. The language for that email was as follows to the Claimants' representation and all interested parties:
"Please be advised that the Council on Local Mandates, has decided to grant your request for a extension to file the Claimants' brief in opposition to the State's Motion to Dismiss. Your request was for fourteen (14) business days, and the Council deems that as too much of a delay and has instead granted a fourteen (14) day extension from the original date of February 11, 2011.
The Claimants' brief in opposition to the State's Motion to Dismiss, should be received in this office by no later than 5 p.m., on February 25, 2011, via email or fax with a original and two copies to follow. All parties should receive the Claimants' brief in opposition to the State's Motion to Dismiss as well."
Request for additional extension to file Claimants' brief. On February 15, 2011, via telephone conversation, Kevin Benbrook, Esq., Claimants' Representation, requested an additional extension of 1-2 weeks to file the Claimants' brief in opposition to the State's Motion to Dismiss. The reasoning behind this request, is the inclement weather the State of New Jersey has been experiencing as of late.
Council's response to Claimants' request for an additional extension to file brief. On February 16, 2011, via email, the Council informed the Claimant, Township of Blairstown, and all interested parties, that it would grant the request for an extension to file the Claimants' brief in opposition to the State's Motion to Dismiss. The language for that email was as follows to the Claimants' representation and all interested parties:
"Please be advised that the Council on Local Mandates, has decided to grant your request for a extension to file the Claimants' brief in opposition to the State's Motion to Dismiss. Your request was for a one to two week extension, and the Council has granted your request for a two week extension from the date of February 25, 2011.
The Claimants' brief in opposition to the State's Motion to Dismiss, should be received in this office by no later than 5 p.m., on March 11, 2011, via email or fax with a original and two copies to follow. All parties should receive the Claimants' brief in opposition to the State's Motion to Dismiss as well."
Here is a schedule of the due dates for filings of pleadings (with all changes), including:
- Answer(s) and any Motions directed to the Complaint (January 22, 2011).
- Claimant response(s) to such Motions (March 11, 2011).
- Requests to Appear as Amicus Curiae (February 18, 2011).
- Objections to Requests to Appear as Amici Curiae (February 25, 2011).
Claimant's Brief in Support of Cross Motion for Summary Judgment and in Opposition to the State of New Jersey's Motion to Dismiss. On March 11, 2011, via email, Kevin P. Benbrook, Esq., filed on behalf of Claimant Blairstown Township, a Brief in Support of Cross Motion for Summary Judgment and in Opposition to the State of New Jersey's Motion to Dismiss. A summary of that pleading may be viewed under Pleading Summaries.
Council issues their Decision and grants the State of New Jersey's Motion to Dismiss. On April 4, 2011, via conference call, the Council discussed and took a vote on the Blairstown matter and voted 5-0 to dismiss. This matter was decided on the merits and the reasons will be set forth in the forthcoming written opinion. On July 8, 2011, the Council informed all parties that the matter would be dismissed on it's merits and issued their written opinion. To view the full version of the written opinion, please click here.
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 Township of Blairstown's Summary of Complaint:
"Blairstown Township is a rural municipality located in Northwest New Jersey. The State of New Jersey has been furnishing adequate police protection to Blairstown's inhabitants since the enactment of N.J.S.A. 53:2-1 in 1921. During the last several years, the State Police statutory protection afforded Blairstown has been confined to providing necessary police protection during those hours when the part-time municipal police department maintained by Blairstown was inoperative. The hours of protection provided by the State Police have varied over time. By way of example, for some period prior to September 2006, the State Police provided coverage to Blairstown inhabitants from the hours of 6:00 p.m. to 7:00 a.m. daily. In September of 2006, Blairstown Township voluntarily increased the hours of operation for its part-time municipal police department. As a result the coverage provided by the State Police on and after that date was changed to 10:00 p.m. to 7:00 a.m. daily, a reduction of three (3) hours per day.
By enactment of the New Jersey Appropriations Act 2009 C.35, the State imposed the requirement that Blairstown and all other New Jersey rural municipalities whose inhabitants were being provided with State Police protection pursuant to N.J.S.A. 53:2-1 reimburse the State for part of the cost attendant thereto. The State of New Jersey Council on Local Mandates in an opinion dated on December 12, 2009 ruled that N.J.S.A.53:2-1 explicitly directs that State Police Officers, "Shall be primarily employed in furnishing adequate police protection to inhabitants of rural sections." It further ruled that this was a mandatory, rather than a discretionary activity and that rural municipalities, such as Blairstown, have absolutely no obligation to maintain a police department and that the decision to do so by a municipality is purely discretionary and subject to the availability of resources. Based on the foregoing analysis, the New Jersey Council on Local Mandates held that the 2009 Appropriations Act was unconstitutional to the extent that it attempted to transfer a portion of the cost of providing the aforementioned police protection from the state to rural municipalities on the grounds that said reimbursement constituted an unfunded mandate in violation of NJ Const. Art. VIII, Sec. 2 p 5 (a).
Blairstown Township, in the Spring of 2010, confronted with fiscal restraints largely attributable to a reduction in state aid, notified the State Police that it would be reducing its part time municipal police coverage by four (4) hours per day, effective July 1, 2010, and requested the State Police to increase its coverage by four (4) hours per day pursuant to its statutory mandate.
The State Police by letter dated June 21, 2010, informed Blairstown Township that it would not provide the requested four (4) hours additional daily coverage. Subsequently, the State has asserted that the State Police refusal was predicated upon the New Jersey Appropriations Act P.L. 2010, Ch. 35, which states in pertinent part:
"Notwithstanding the provisions of any other law or regulation to the contrary, none of the monies appropriated to the Division of State Police shall be used to provide police protection to the inhabitants of rural sections pursuant to R.S. 53:2-1 in a municipality in which such services were not provided in the previous fiscal year or to expand such services in a municipality beyond the level at which such services were provided in the previous fiscal year."
The State's refusal is not only a departure from its statutory obligation, but is also contrary to the State's custom and practice in implementing N.J.S.A. 53:2-1 since its enactment in 1921. As previously stated, the State has, until enactment of the challenged Appropriations Act, without exception provided Blairstown Township with all necessary police protection during the hours that the Township part-time department was inoperative. The extent of this "custom and practice" is further evidenced by the fact that the New Jersey State Police in calendar year 2010 assumed responsibility for providing all necessary police protection to Stillwater Township, a rural municipality which officially disbanded its municipal Police Department in December 2009. This, after initially posturing that it had no responsibility to provide even emergent part-time coverage to Stillwater Township.
The Township of Blairstown contends that by freezing the level of State Police coverage as it existed in the previous fiscal year, the 2010 Appropriations Act is attempting to achieve in a slightlly different manner what the Council has already determined to be an unfunded mandate with respect to the 2009 Appropriations Act; that being the transfer of a portion of the cost of providing rural policing that the State is mandated to fund exclusively pursuant to N.J.S.A.53:2-1. In the 2010 version, the State is mandating, without providing any funding mechanism whatsoever, that the Township of Blairstown maintain its existing level of municipal policing in order that the Township can have the"adequate police protection" mandated by statute while the State provides funding that is sufficient for only part-time State Police coverage. In so doing, the State is effectively co-opting the Township's municipal police force and mandating its continued existence at the sole cost and expense of the Township, in the absence of any statutory authority, and for the purpose of transferring a portion of the cost of providing the adequate rural police protection that the State alone is required to provide at its sole cost and expense. In short, the State through enactment of the aforementioned 2010 Appropriations Act, is attempting to convert a voluntary municipal act to an unfunded mandated obligation, contrary to NJ Const. Art. VIII, Sec. 2 p 5 (a)."
The above summary is a quotation from the Complaint filed by Robert J. Benbrook, Esq., Township Counsel, on behalf of the Township of Blairstown, on December 21, 2010.
Respondent State of New Jersey's Summary of Answer and Motion to Dismiss the Complaint:
"The State moves before the Council for the dismissal of Blairstowns's complaint. The State Police provides significant rural patrol services to Blairstown on a daily basis, as it has since 2006. The statutory language does not reduce or alter that commitment. The Appropriations Act language challenged here is not a mandate. It imposes no obligation on Blairstown whatsoever. It imposes no new or additional responsibilities upon any municipality, including Blairstown. To the contrary, it simply constrains the New Jersey State Police from expending appropriated dollars to expand or increase the police services provided pursuant to N.J.S.A. 53:2-1. The Legislature, exercising its supreme authority under the State Constitution to appropriate State dollars, constrained the use of those funds in furtherance o fpublic safety and officer safety. Because the challenged language is not a mandate, the Council should dismiss the complaint."
The above summary is a quotation from the Answer and Motion to Dismiss the Complaint filed by Robert Lougy, Assistant Attorney General, on behalf of the State of New Jersey, on January 21, 2011.
Claimant's Brief in Support of Cross Motion for Summary Judgment and in Opposition to the State of New Jersey's Motion to Dismiss:
"Please accept this Brief on behalf of the Complainant, Township of Blairstown ("Blairstown"), in oppostion to the Motion to Dismiss filed on behalf of the Respondent, The State of New Jersey ("State") and in support of Blairstown's Cross-Motion seeking Summary Judgment.
Initially, with respect to the State's Motion to Dismiss, it acknowledges that teh Council has previously held that "great caution" is required in considering a Motion for summary disposition, citing In re Board of Education in Borough of Highland Park, decided August 5, 1999, at 13. Nevertheless, Blairstown concurs that the relevant material facts can be adequately placed before the Council, the are not in dispute, and those facts merit the denial of the State's Motion to Dismiss and the grant of Summary judgment in favor of Blairstown.
As more fully amplified in the Statement of Facts and Legal Argument below, this case presents the second attempt by the State to re-allocate the cost of providing rural policing. In the Fiscal Year 2009 Appropriations Act, the State prohibited the use of State Police appropriations to provide police protection to a rural community unless that municipality entered into a cost sharing agreement that was non-optional unless the municipality contracted for shared police services with another municipality or government agency. That Appropriations law was challenged by a number of municipalities, and in In re Borough of Shiloh, et al. ("Shiloh"), decided October 22, 2008, this Council found this provision to be a legislatively-imposed "mandate". In so holding, this Council stated:
"That conclusion is unavoidable. N.J.S.A. 53:2-1 has long imposed on the State Police the duty of furnishing police protection to rural communities. Under the Appropriations Act, the affected municipalities are required to provide police protection, either through the State Police or through shared police services with another municipality or government agency."
Shiloh, Opinion at P.7.
In Shiloh, the Council went on to conclude that various State grants relied upon by the State were not earmarked for funding State Police services, and the mandate to provide police protection was an "unfunded mandate" in violation of Article VIII, ยง2, Paragraph 5(a) of the New Jersey Constitution and pursuant thereto, declared that portion of the Fiscal Year 2009 Appropriations Act to cease to be mandatory in its effect and expire. Shiloh, Opinion, P. 6-12.
In the case at bar, the law at issue is the Fiscal Year 2011 Appropriations Act, P.L. 2010,c.35 (hereinafter "2011 Appropriations Act"). Once again, the Legislature has restricted the use of State Police appropriations, in this instance legislating that:
"None of the monies appropriated to the Division of State Police shall be used to provide police protection to the inhabitants of rural sections pursuant to R.S. 53:2-1 in a municipality in which said services were not provided in the previous fiscal year or to expand such services in a municipality beyond the level at which such services were provided in previous fiscal year."
In contrast to its argument with respect to the Fiscal Year 2009 Appropriations Act where it conceded the language established a mandate, albeit a funded one, the State contends the language inserted in the 2011 Appropriations Act is not a mandate at all, as "[I]t imposes no new or additional responsibilities upon any municipality, including Blairstown."
Respondent's Brief, P.2.
This argument on the part of the State is the same argument that this Council declared to be "simplistic and literal" in the context of the State's intention to withdraw from the deer disposal business on county and local roads that was rejected in In re Complaints filed by the Counties of Morris, Warren, Monmouth and Middlesex ("Morris County, et al.")" decided October 31, 2006 at 9. In point of fact, in its practical application, the 2011 Appropriations Act mandates, just as was the case with the Fiscal Year 2009 Appropriations Act, that the affected rural municipalities are required to provide police protection. In this instance that protection must come through their own municipal police departments or through shared police services with another municipality or government agency. In Blairstown's case, this mandate entails that it provide police protection through its municipal police department between the hours of 7:00 a.m. and 10:00 p.m. on a daily basis, even though having any municipal police department at all is entirely discretionary, pursuant to the statute authorizing the establishment of municipal Police Departments, N.J.S.A. 40A:14-118.
In contemplating the obvious and serious consequences to health and safety that would be incumbent to the piling up of deer carcasses on the highways, the Council noted that these consequences "need neither legal research nor scholarly study to realize." In re Morris County, et al. at 13. To an even greater extent, the serious health and safety consequences to the residents of Blairstown and the public at large that would result from less than full-time, twenty-four hour police protection, do not require anything beyond the application of common sense. Thus, as argued more fully below, in asserting that it is imposing no obligation upon Blairstown when it limits State Police protection to part-time patrolling, the State is asking the Council to do nothing less than suspend common sense, and conclude that Blairstown can rationally elect to leave its residents and the public at large at risk for certain scheduled portions of the day and not appropriate the funds necessary to replace the police protection withheld by the legislative mandate with protection through itw own municipal police force. This is sophistry of the highest order that would constitute the blatant circumvention of the Constitutional purpose underlying the prohibition on unfunded mandates."
The above summary is a quotation from the Pleading Summary on behalf of Claimant's Brief in Support of Cross Motion for Summary Judgment and in Opposition to the State of New Jersey's Motion to Dismiss provided by Kevin P. Benbrook, Esq., on March 11, 2011.
