Opinion
CIVIL NO. 98-4199 (JBS).
October 21, 1999
Mr. Franchot Nunnely, Chesilhurst, New Jersey, Plaintiff pro se.
Michael O. Kassak, Esq., Cindy M. Perr, Esq., White and Williams LLP, Westmont, New Jersey, and Harvey C. Johnson, Esq., Michele Gibson, Esq., Camden, New Jersey, Attorneys for Defendant.
OPINION
The instant case arises from the decision by defendant, the Borough of Chesilhurst, to prosecute plaintiff for not complying with a licensing ordinance for his junkyard business. Plaintiff Franchot Nunnely was convicted of violating Chesilhurst's ordinance which set out standards for licenses as well as various other restrictions on junkyards. He claims that as a result of defendant's prosecution of him under this ordinance, defendant is liable under 42 U.S.C. § 1983 for violating his rights under the Fourteenth Amendment to the U.S. Constitution, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000E(a)(1), and under state law (including N.J.S.A. 40:55-48, which was repealed and replaced by N.J.S.A. 40:55D-68, which provides that nonconforming structures and uses upon a lot existing at the time of passage of an ordinance may be continued). Now before the Court is defendant's motion for summary judgment. Because this Court finds that it lacks jurisdiction to hear plaintiff's claims as a result of res judicata and theRooker-Feldman doctrine, summary judgment shall be granted for the defendant and this case shall be dismissed.
The facts as listed in this opinion are adopted from the statement of facts in defendant's brief, which are all supported by the exhibits attached to defendant's brief. Plaintiff did not submit his own statement of undisputed facts, affidavits, or documentary evidence (other than what purports to be licenses he held from the defendant for the years 1979, 1980, and 1983 for "Auto Repair — New and Used Parts for Sale), and he has not contested any of the facts or evidence which defendant has presented. As a result, defendant's statement of the facts is deemed admitted. L. Civ.R. 56.1. See also Cheminor Drugs, Ltd. v. Ethyl Corp . , 993 F. Supp. 271, 273 n. 3 (D.N.J. 1998).
In March 1974, the Borough of Chesilhurst ("Chesilhurst" or "defendant") approved an ordinance, number 74-9, regarding the licensing and regulation of businesses operating within its borders. Ordinance 74-9 was known as the "Ordinance to License and Regulate Mercantile and Business Professions and Occupations in the Borough of Chesilhurst." That ordinance was amended in September 1975 through ordinance 75-19, the "Ordinance to Amend an Ordinance to License and Regulate Mercantile and Business Professions and Occupations in the Borough of Chesilhurst." In January of 1990, Chesilhurst passed ordinance 89-15, which set forth specific licensing fees for virtually all potential types of businesses that could be operated within the municipality.
On July 10, 1975, Chesilhurst also passed ordinance 75-8, "An Ordinance to Prohibit the Storage, Discarding or Leaving Abandoned Automobiles which are Unfit for Immediate Use or For Sale for Highway Transportation, Used Parts of Motor Vehicles or Junk Articles on Lots and Inside Any Building in the Borough of Chesilhurst . . ." (the "junkyard ordinance"). That was amended on May 12, 1983 by ordinance 83-5 (the "amended junkyard ordinance"), which would allow no more than two licenses to be issued to operate a junkyard and which set forth the manner by which an individual or entity could obtain a license to operate a junkyard within Chesilhurst.
The amended junkyard ordinance states that "no license or renewal thereof" shall be granted pursuant to the ordinance:
1. If the applicant has been a habitual violator of the provision of this ordinance or if the applicant has been convicted of the crime of larceny, or of receiving stolen property. As used in this paragraph (b) the term, "applicant", shall include each partner and each stockholder, director or officer of the corporate applicant; or
2. If the premises to be licensed as a junk yard, junk dealer, motor vehicle salvage yard do not conform to the provisions of the zoning ordinance of the Borough; or
3. If the storage of junk and/or inoperable motor vehicles at the proposed lands and premises of the applicant would constitute a fire or safety hazard; or
4. If the applicant has not complied with the fencing requirements as required by this ordinance or other applicable provisions of ordinances of the Borough of Chesilhurst deemed essential for the protection of the health, safety, and welfare of the public; or
5. If there is reason to believe that the granting of the license and the operation and conduct of the proposed licensed business will result in violations of the ordinances and the codes of the Borough of Chesilhurst.
Ordinance 83-5, at page 2, ¶ 2B1-5.
In 1986, Nunnely was charged with two violations of the amended junkyard ordinance because he had more than one abandoned automobile on his property; he was charged with keeping fifty to seventy-five vehicles. At his municipal court criminal trial, Mr. Nunnely admitted that he was operating the junkyard without a license and was in violation of the junkyard ordinances, but argued that he should be exempt from the licensing requirements and conditions of the amended junkyard ordinance because he was operating his business prior to the original junkyard ordinance's enactment in 1975. He also alleged that the junkyard ordinance was "discriminatory," "aimed directly at him and him alone." At oral argument, the municipal court specifically considered those arguments and rejected them, noting that there was no evidence of discrimination and that, in any case, the court did not believe it had jurisdiction to determine the validity and constitutionality of the ordinance. (Defendant's Br. Ex. G [transcript of municipal court proceedings] at 36:1-14.) The court imposed a monetary penalty and ordered that the property be cleared of the abandoned vehicles and that Nunnely obtain the appropriate license. (Id. at 39:18 40:19.)
Nunnely appealed this conviction to the Superior Court of New Jersey, Law Division, specifically arguing that the junkyard ordinance was discriminatorily aimed at him, that he did not have a chance to challenge the ordinance, and that he should be exempt from it because he was operating his business prior to the enactment of the ordinance. (Defendant's Br. EXH. H.) He further alleged that he was deprived of substantive and procedural due process. Id. By order dated February 1, 1988, the Honorable Isaiah Steinberg, J.S.C., affirmed Mr. Nunnely's conviction, finding there was no evidence that Nunnely had applied for and had been denied a permit (at all or arbitrarily). (Id. at Ex. I.) Judge Steinberg specifically noted that while Mr. Nunnely could continue to operate his business as a valid nonconforming use, he would still be subject to reasonable safety/health/ welfare regulations, and thus Mr. Nunnely would have to obtain a license and comply with its requirements.State of New Jersey, Borough of Chesilhurst v. Nunnely, No. A-3132-87T6, slip op. at 3 (N.J.Super.Ct. App. Div. June 5, 1989) (quoting Judge Steinberg's opinion). Mr. Nunnely appealed that to the Appellate Division, raising the same arguments. (Defendant's Br. Ex. L [Mr. Nunnely's brief to the Appellate Division].) By per curiam decision dated June 5, 1989, the Appellate Division affirmed, finding no evidence that Nunnely ever sought a license, challenged the ordinance (when it was enacted) as unconstitutional, or brought an action (when the ordinance was enacted) to compel defendant to issue him a license. State of New Jersey, Borough of Chesilhurst v. Nunnely, No. A-3132-87T6, slip op. at 4 (N.J.Super.Ct. App. Div. June 5, 1989).
In April of 1995, Nunnely was cited for several criminal acts, including leaving abandoned or junk vehicles on his property, maintaining a public garage, obstructing a public highway by working on a vehicle in the middle of the road, and creating and maintaining a dangerous condition by operating without a license and having more than 100 vehicles on his property. He was tried in Chesilhurst municipal court on December 14, 1995, at which time he admitted he was operating his junkyard without a license and had not attempted to obtain a license. (Defendant's Ex. N at 21:9-21.) He again asserted that he was exempt from the licensing requirements because his business was a "non-conforming use." (Id. at 18:11 — 21:21.) He was found guilty of the charges and ordered to pay fines and court costs because he (1) was working on vehicles in the road, (2) had at least 20 abandoned vehicles on the public property outside of his fence, and (3) had those vehicles there for at least eight years, and because those vehicles constituted a health and safety hazard. (Id. at 24-21.) His fines were held in abeyance for 30 days so that he could remedy the condition. (Id. at 33:25 — 34:25.) Mr. Nunnely did not remedy the property, so a bench warrant was issued on April 24, 1996, summoning him to appear in court, at which time he again admitted that he had not remedied the condition of the property. (Defendant's Br. Ex. O at 4:15.)
On August 26, 1998, Mr. Nunnely was again ordered to remove the vehicles by September 10, 1998. (Defendant's Br. Ex. P. at 10:15-18.) At the judge's order, Chesilhurst Patrolman Clements surveyed the condition of Nunnely's land and authored a report indicating that the property was in a dangerous condition. On September 10, Nunnely appeared in court and acknowledged that he had not remedied the hearing. (Defendant's Br. Ex. R at 10-13.) Officer John Leahy, Jr. testified that there were 34 abandoned vehicles outside of Nunnely's fence. (Id. at 5:18 — 6:25.) The court sentenced Nunnely to 30 days in jail, beginning with voluntary surrender the next day at 4:00 p.m. (Id. at 13:5 — 14:21.)
On September 8, 1998, Nunnely filed the instant action claiming a violation of his civil rights. He told the municipal court that it could not enforce its sentence as a result, but the municipal court issued a bench warrant for his arrest when he did not voluntarily surrender.
Pursuant to defendant's motion and this Court's order, plaintiff submitted a "more definite statement," or amended complaint, in which he claims that the junkyard ordinances are unconstitutional and that his civil rights were violated as a result. He claims that Chesilhurst, "under color of law," passed ordinances which were discriminatory or unconstitutional under the Fourteenth Amendment to the U.S. Constitution, as well as that Chesilhurst violated Title VII and state law.
Now before the Court is defendant Chesilhurst's motion for summary judgment. Chesilhurst raises as bases for dismissal the statute of limitations, res judicata, and deficit of evidence to support the plaintiff's case as a matter of law, all of which plaintiff opposes. This Court agrees that res judicata bars the instant case, as does theRooker-Feldman doctrine, which was not raised by the parties. Accordingly, this Court need not address defendant's other arguments.
II. DISCUSSION
A. Summary Judgment Standard
A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Liberty Lobby, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Anderson, 477 U.S. at 249-50.
B. Res Judicata and the Rooker-Feldman Doctrine
In determining whether claims in the instant matter are barred by res judicata, or claim preclusion, this Court looks to the well-settled rule recited in Paramount Aviation Corporation v. Augusta, 178 F.3d 132, 135-36 (3d Cir. 1997), that "federal courts should apply the general rule that the preclusive effect of a judgment is determined by the preclusion law of the issuing court . . . ." The instant case involves previous decisions of New Jersey courts, and thus this Court must look to New Jersey claim preclusion law, which holds that a previous judgment bars later litigation on issues if the following criteria are met: "(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one." Watkins v. Resorts Int'l Hotel and Casino, Inc., 124 N.J. 398, 412 (1991) (quoting Moitie, 452 U.S. at 398, as consistent with New Jersey law). A cause of action "that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding." Velasquez v. Franz, 123 N.J. 498, 505 (1991). Thus, if a claim could have been presented in the first action (because the court would have had jurisdiction), it will be precluded in the second action, Watkins, 124 N.J. at 413.
In this case, plaintiff raised arguments before each of the state tribunals about the constitutionality of the ordinance on its face and the discriminatory nature of that ordinance. Though the municipal court felt that it did not have jurisdiction to determine the validity and constitutionality of the statute itself, the municipal court did address Mr. Nunnely's argument that the ordinance was discriminatory because it was "aimed directly at him and him alone," finding that there was no evidence of discrimination. In affirming the municipal court decision, the Law Division did address the constitutionality of the ordinance on its face, finding that the ordinance was reasonable:
I do believe that a business which may constitute a nonconforming use may still be subjected to reasonable regulations enacted by the government either municipal, state or federal, which are designed to promote and protect and preserve the public's safety, health and welfare and that's what this ordinance is all about.State of New Jersey, Borough of Chesilhurst v. Nunnely, No. A-3132-87T6, slip op. at 3 (N.J.Super.Ct. App. Div. June 5, 1989) (quoting Judge Steinberg's opinion). Further, both the Law Division and the Appellate Division commented on the lack of evidence of discriminatory application of the ordinance to Mr. Nunnely, noting that because Mr. Nunnely never applied for a license under the new ordinance, he could not argue that he was discriminatorily denied a license. Id. All courts rejected Mr. Nunnely's argument that it was unconstitutional or invalid to hold him accountable under the ordinance because his was a valid, prior non-conforming use.
Therefore, the state courts decided, on the merits, that there was no evidence of discrimination, either directly or through inferences from a denial of a license, that the ordinance was constitutional as a reasonable exercise of the state police power, and that no theory of nonconforming uses excused him from the reach of the ordinance. Having ruled adversely to Mr. Nunnely on those claims, the state courts found Mr. Nunnely guilty of violating the ordinance, fined him, ordered him to comply with the law, and issued a bench warrant for his arrest when he did not comply.
Mr. Nunnely's claims before this Court pursuant to 42 U.S.C. § 1983 and Title VII are all based on theories that the ordinance is unconstitutional and that Chesilhurst has been discriminating against Mr. Nunnely, the very theories which the state courts considered and rejected. As the judgments of the state courts were final and on the merits, the parties are the same, and the transaction in question is the same, res judicata bars relitigation of those issues now, as well as litigation of any issues which Mr. Nunnely could have but did not raise then.
For example, Mr. Nunnely now argues that this is an ex post facto law, an argument which it is not entirely clear that he raised before the state courts. Nonetheless, he could have raised that issue, just like the others, in arguing to the state courts that he not be held accountable for violating the ordinance. Because the same occurrence or transaction is at issue here, the parties are the same, and the state judgments were final and on the merits, claim preclusion bars litigation of those issues now.
Additionally, the instant lawsuit is barred by the Rooker-Feldman doctrine. Under 28 U.S.C. § 1257, final judgments or decrees entered by the highest court of a state may only be reviewed by the United States Supreme Court via a writ of certiorari. The Rooker-Feldman doctrine, gleaned from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) andDistrict of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), expands upon this, noting that while the Supreme Court can review state court decisions, lower federal courts cannot "sit in direct review of the decisions of a state tribunal." Whiteford v. Reed, 155 F.3d 671, 673 (3d Cir. 1998) (quoting Gulla v. North Strabane Township, 146 F.3d 168, 170 (3d Cir. 1998)). The District Court's lack of jurisdiction is not limited to direct review of a state decision; rather, if the relief sought in a federal action (not before the Supreme Court) would "effectively reverse the state decision or void its ruling . . . the district court has no subject matter jurisdiction to hear the suit." Whiteford, 155 F.3d at 674 (quoting FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996)). The concern, thus, is with the practical effect of a federal decision on the state decision. The doctrine applies to the decisions of lower state courts as equally as it does to higher state courts, Whiteford, 155 F.3d at 674, so long as the state adjudicative action reached the merits of a plaintiff's claims. Gulla, 146 F.3d at 172-73.
In the instant case, this Court's decision on the merits of the § 1983, Title VII, and state law claims, if favorable to the plaintiff, could have the effect of nullifying the state court decision that Mr. Nunnely be held liable under the ordinance, as well as the effect of reversing the more specific judgments related to the constitutionality of the ordinance and the lack of evidence of discrimination. Because this federal court is not empowered to sit as an appellate tribunal reviewing state court judgments, this Court does not have jurisdiction to render such a decision. Therefore, plaintiff's case will be dismissed.
III. CONCLUSION
For the foregoing reasons, this Court will grant summary judgment to the defendant, the Borough of Chesilhurst, and plaintiff's case will be dismissed in its entirety. Both res judicata and the Rooker-Feldman doctrine bar this Court from addressing plaintiff's claims. The accompanying Order is entered.
ORDER
This matter having come before the Court upon defendant's motion for summary judgment; and the Court having considered the parties' submissions; and for the reasons expressed in the Opinion of today's date;
IT IS this day of October 1999 hereby
ORDERED that defendant's motion for summary judgment be, and hereby is, GRANTED, and this action shall be dismissed with prejudice in its entirety.