MARILYNN ENGLISH v. THE COUNTY OF ESSEX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6098-11T2

MARILYNN ENGLISH, ANN

SCHILDKNECHT, AND ELLEN

HEINE,

Plaintiffs-Appellants,

v.

THE COUNTY OF ESSEX,

JOSEPH DIVINCENZO, COUNTY

EXECUTIVE, AND THE

FREEHOLDER BOARD,

Defendants-Respondents.

_____________________________________

February 13, 2014

Submitted December 16, 2013 Decided

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-784-12.

Marilynn English, Ann Schildknecht and Ellen Heine, appellants pro se.

James R. Paganelli, Essex County Counsel, attorney for respondents (Mr. Paganelli, on the brief).

PER CURIAM

Plaintiffs Marilynn English, Ann Schildknecht and Ellen Heine appeal from an order entered by the Law Division on May 25, 2012, dismissing their complaint pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. Plaintiffs also appeal from an order entered on July 13, 2012, denying their motion for reconsideration of the May 25, 2012 order. For the reasons that follow, we affirm.

On September 7, 2011, the Essex County Board of Chosen Freeholders approved an application for a Community Based Deer Management Permit, for submission to the Division of Fish and Wildlife, in the New Jersey Department of Environmental Protection. In the application, the County proposed to conduct the same type of deer-management program that it had previously conducted to reduce the deer population in the South Mountain, Eagle Rock and Hilltop reservations. The goal of the program was to "remove" 133 deer from South Mountain, 86 deer from Eagle Rock and 141 deer from Hilltop.

On December 20, 2011, the Division of Fish and Wildlife approved the application and issued Community Based Deer Management Permit 094, which allowed twenty-two agents to cull deer on the aforementioned properties, during the six-week period beginning on January 17, 2012, and ending on February 23, 2012. The permit stated that it was issued to address the "significant amount of damage caused by the over-abundant deer population" in the area.

On January 30, 2012, English filed a pro se complaint in the Law Division against the County of Essex, the County Executive and the County's Board of Freeholders, seeking an order enjoining the 2012 deer hunt. In her complaint, English alleged that she previously had filed a lawsuit seeking to stop a deer hunt in Hilltop reservation, but that lawsuit had been dismissed. English said that the issues she raised in her earlier lawsuit had not been addressed.

English disputed the County's assertion that the hunts were undertaken without cost to the taxpayers. She claimed that the Board had previously established a committee to review a prior deer hunt and produce a report. She alleged that the report would have provided information needed to determine the impact of the deer management techniques that the County had chosen to employ in the latest hunt.

English further claimed that the County had not produced proper documentation to "project accurate information" about the actual costs of the hunt. She alleged that it was "fiscally unsound" for the Board and the County Executive to "endorse and provide for a deer hunt" without giving the taxpayers "proper information" in the required reports. She also alleged that the County had not provided the "best alternatives for safety issues[,]" and the program "has not been in the best interest for the use of the public land."

English demanded a judgment enjoining the deer hunt for 2012, pending "the immediate release" of reports for 2008 to 2011, as "required" by the Board's prior resolution. English additionally sought damages and such other relief that the court deemed "appropriate and necessary."

On February 1, 2012, after hearing oral argument, the trial court entered an order denying English's motion to enjoin the hunt. The following day, English filed an application with a judge of this court seeking leave to file an emergent motion for an injunction to "stop the deer hunt." English was allowed to file an emergent motion, which defendants opposed. We entered an order dated February 3, 2012, denying English's motion.

English then filed a motion for leave to appeal our interlocutory order to the Supreme Court and for a stay of the 2012 deer hunt. By order entered on February 9, 2012, the Supreme Court denied the motions. On February 10, 2012, English filed a pro se amended complaint in the trial court, which added Schildknecht and Heine as plaintiffs. The deer hunt proceeded as scheduled and was completed on February 23, 2012.

In lieu of filing an answer to plaintiffs' amended complaint, defendants filed a motion to dismiss pursuant to Rule 4:6-2(e), arguing that the complaint failed to state a claim upon which relief could be granted. Plaintiffs opposed the motion. The trial court considered the matter on May 25, 2012, and determined that the amended complaint should be dismissed.

The court found that the plaintiffs' claims were moot because the hunt had been completed. The court also found that the complaint had not been timely filed. In addition, the court determined that the County's decision to conduct the hunt represented "a policy decision," and the court should not substitute its judgment for the judgment of the policymakers. The court entered an order dated May 25, 2012, dismissing the complaint.

On June 18, 2012, plaintiffs filed a pro se motion for reconsideration. The court denied the motion, noting on the order that if plaintiffs filed a timely complaint seeking to enjoin the 2013 deer hunt, it would be "difficult" for defendants to argue that plaintiffs had filed their complaint too late. This appeal followed.

We note that, on January 11, 2013, plaintiffs filed a motion in the trial court to enjoin the County's 2013 deer hunt, which was scheduled to begin on January 22, 2013. The trial court entered an order dated January 16, 2013, denying the motion. Plaintiffs filed an application with a judge of this court seeking leave to file an emergent motion for a stay of the deer hunt. The application was denied.

The judge pointed out that the appeal from the dismissal of plaintiffs' complaint regarding the 2012 deer hunt was pending, and plaintiffs had not filed a new complaint challenging the 2013 deer hunt. Plaintiffs then filed an application with a justice of the Supreme Court, seeking emergent relief. The justice denied the application.

In their appeal, plaintiffs argue that the trial court erred by dismissing the complaint. Plaintiffs contend that the Board violated its own internal directives concerning deer management, which provided for the formation of a committee to review and report to the Board on deer management issues. Plaintiffs claim that defendants violated the County's administrative code with regard to the expenditure of funds for the hunt.

Plaintiffs further argue that the County's deer management techniques are inconsistent with certain municipal land use laws and regulations. They additionally claim that the deer hunt had been conducted at "great cost" and the results were ineffective. Plaintiffs say the County should employ "non-lethal" methods to reduce the County's deer population.

We conclude, however, that the trial court correctly determined that plaintiffs' complaint was not timely filed. Rule 4:69-6(a) states that, except as otherwise provided in the rule, an action in lieu of prerogative writs must be commenced no later than 45 days after the accrual of the right to review.

Here, plaintiffs filed an action in lieu of prerogative writs, challenging the County's approval of an application for the 2012 deer management program. As we noted previously, the Board approved the application on September 7, 2011. The complaint was not filed until January 30, 2012. Therefore, plaintiffs' complaint was not filed within the time prescribed by Rule 4:69-6(a).

The time for filing the complaint may, however, be enlarged pursuant to Rule 4:69-6(c) "where it is manifest that the interest of justice so requires." The Supreme Court has identified three general categories of cases in which this exception might apply. Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135, 152 (2001).

Those cases involve "'(1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification.'" Ibid. (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)).

Plaintiffs' complaint does not qualify for the "interest of justice" exception. Plaintiffs have not raised any constitutional claim, and this case does not involve any informal or ex parte decision on a legal question. Furthermore, while the issues that plaintiffs raise may be important to them and others, they appear to be of insufficient merit to implicate the public interest. We therefore conclude that the trial court correctly determined that the complaint should be dismissed.

Even if plaintiffs' complaint had been filed within the time required by Rule 4:69-6(a), the issues that plaintiffs raised are now moot. As we have explained, plaintiffs challenged the 2012 deer hunt, and their applications to enjoin the hunt were denied. The hunt proceeded as scheduled and it was completed on February 23, 2012. Thus, the issues raised regarding the 2012 hunt are now moot.

Accordingly, the trial court correctly refused to address those issues. Generally, courts will dismiss cases which raise moot or academic issues. Caput Mortuum, L.L.C. v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004) (citing Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993)). A court may, however, reach the merits of a moot controversy if an issue raised is one of public significance and capable of repetition while evading review. Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 583 (2003).

Because the 2012 deer hunt has been completed, the court cannot render effective relief as to that hunt. Plaintiffs' attempts to enjoin the 2013 hunt were not successful. The issues raised regarding the 2012 hunt might not arise as to a future hunt. If they do, they could be addressed if raised sufficiently in advance of the scheduled hunt.

In view of our decision that plaintiffs' complaint was not timely filed and the issues raised are moot, we need not address the other issues raised on appeal.

Affirmed.