NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5499-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAYOR DWAYNE D. WARREN, ESQ.;
HON. DONNA K. WILLIAMS; HON. KERRY
J. COLEY; HON. TENCY A. EASON; HON.
HAROLD J. JOHNSON, JR.; HON.
CHRISTOPHER JACKSON; HON. JAMIE
SUMMERS-JOHNSON; and HON.
ADRIENNE WOOTEN,
Defendants.
____________________________________
Submitted July 23, 2018 – Decided August 9, 2018
Before Judges Whipple and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Municipal Appeal
No. 2017-017.
Jeffrey S. Feld, appellant pro se.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Frank J.
Ducoat, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Complainant Jeffrey S. Feld, Esq., appeals from a July 5,
2017 order of the Law Division denying a municipal appeal for a
lack of probable cause determination and dismissal of his citizen-
complaints. For the following reasons, we affirm.
On October 18, 2016, the Orange Township City Council (the
Council) voted on and passed resolution 333-2016, confirming the
appointment of several individuals, including the Mayor's brother,
to various jobs in the Township. The resolution passed in a closed
Executive Session.
Feld attempted to place a statutory Open Public Meetings Act
(OPMA), N.J.S.A. 10:4-6 to 10:4-21, objection on the public record
because he alleged the resolution passed without reasonable
community notice and opportunity to be heard. Feld filed
complaints in Orange City Municipal Court against: Mayor Dwayne
D. Warren, Esq., the Honorable Donna K. Williams, the Honorable
Kerry J. Coley, the Honorable Tency A. Eason, the Honorable Harold
J. Johnson, Jr., the Honorable Christopher Jackson, the Honorable
Jamie Summers-Johnson, and the Honorable Adrienne Wooten, all
elected city officials in Orange Township. The complaints charged
defendants with official misconduct in violation of N.J.S.A.
2 A-5499-16T4
2C:30-2. On December 2, 2016, Feld signed complaint-summonses
against six1 of the original eight defendants.
On January 4, 2017, the municipal court judge conducted a
probable cause hearing pursuant to Rule 3:3-1, where a
representative for defendants was present but not permitted to
participate. Feld argued defendants violated the OPMA, N.J.S.A.
10:4-9, and the State Constitution because no public notice and
opportunity to be heard was afforded on the resolution. The judge
determined Feld did not exhaust available remedies under the OPMA
and did not secure the assent of the prosecutor's office to serve
as a private prosecutor. Consequently, the judge found
insufficient probable cause to establish criminal complaints under
N.J.S.A. 2C:30-2 against defendants and dismissed the complaint.
On January 14, 2017, Feld moved for reconsideration or in the
alternative, an order designating himself as a prosecuting
attorney for the limited purpose of perfecting an appeal of the
January 4 dismissal. On March 17, 2017, the judge heard argument
1
On January 4, 2017, Feld withdrew his complaints against the
Honorable Harold J. Johnson, Jr., and the Honorable Christopher
Jackson. He asserted that, after the events leading to the
resolution at issue, the Council "adopted a new policy and
procedure regarding walk-on resolutions" and that these two
members were the leading force behind the change. These members
were the only "nay" votes during the adoption of resolution 333-
2016.
3 A-5499-16T4
on Feld's motion for reconsideration. After no substantive
argument or colloquy, the judge addressed Feld, saying:
Counselor, I'm designating you as the
complainant, the person who wants to make the
complaint. I'm not appointing you as special
prosecutor. I believe that you have certain
standing in that matter. If you think I made
a procedural error or an error as to law as
opposed to fact, I . . . want you to file that
appeal[.]
. . . .
I have no problem at all with you filing an
appeal in this matter, or a reconsideration,
or trying to get some judge of a higher level
to reconsider what we did.
On March 24, 2017, the judge signed an order granting Feld
"Prosecuting Attorney Appellate Designation."
On March 30, 2017, Feld appealed the dismissal of his
complaint to this court. The Appellate Division Clerk forwarded
Feld's papers to the Law Division because, pursuant to Rule 3:24,
plaintiff was required to initially file in that forum.
On June 30, 2017, the parties, including Feld, defendants'
counsel, and an Assistant Prosecutor, appeared before the Law
Division judge for a hearing on the municipal appeal. On July 5,
2017, after reviewing the submissions and hearing oral argument,
the judge denied Feld's municipal appeal under Rule 3:23-9(d) for
lack of standing. This appeal followed.
4 A-5499-16T4
When considering a decision of the Law Division settling a
municipal appeal, we consider whether there is sufficient credible
evidence in the record to uphold the findings of the Law Division,
not the municipal court. State v. Johnson, 42 N.J. 146, 162
(1964). Like the Law Division, we do not make new credibility
findings. State v. Locurto, 157 N.J. 463, 470 (1999). Instead,
we defer to the trial court's credibility findings. State v.
Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). However, "a
trial court's interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special
deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J.
366, 378 (1995) (citations omitted). Our interpretation of the
Rules, and of standing, are legal issues, which are subject to de
novo review. N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 453
N.J. Super. 272, 291 (App. Div. 2018) (citing NAACP of Camden Cty.
E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 444 (App. Div.
2011)).
Feld argues the Law Division judge erred by not deferring to
the municipal judge's order granting him prosecuting attorney
status. We disagree. Under Rule 3:24, only a defendant or the
prosecuting attorney may appeal from an order of a court of limited
jurisdiction, and such appeal must be made first to the Superior
5 A-5499-16T4
Court, Law Division. Municipal courts are courts of limited
jurisdiction. See N.J.S.A. 2B:12-1.
On January 4, 2017, the municipal judge found insufficient
probable cause to issue criminal summonses against defendants, and
effectively dismissed Feld's complaint. We have previously
instructed "an adverse ruling as to probable cause, warranted or
otherwise, cannot be appealed by any person except a 'prosecuting
attorney.'" State v. Bradley, 420 N.J. Super. 138, 143 (App. Div.
2011). Feld attempts to distinguish Bradley, asserting the offense
he charged against defendants was a second-degree crime, whereas
in Bradley, the charge was merely a disorderly persons offense.
It is a distinction without a difference. In Bradley, we said,
"only prosecutors, as defined in the court rules, are authorized
to act in cases that may result in incarceration or other penalties
of magnitude." Id. at 142.
Here, Feld did not obtain assent from either the municipal
prosecutor or the county prosecutor. Feld asserts since the
prosecutor was on notice of his application, and did not file
opposition or appear at the municipal hearings, the prosecutor
implicitly assented to his application, waived any objections, and
should be equitably estopped from objecting now. We disagree,
"[t]he doctrine [of equitable estoppel] is 'rarely invoked against
a governmental entity . . . .'" McDade v. Siazon, 208 N.J. 463,
6 A-5499-16T4
480 (2011) (quoting Cnty. of Morris v. Fauver, 153 N.J. 80, 104
(1998)). Moreover, the prosecutor's representative was present
at the hearing before the Law Division, and asserted unequivocally,
"[Feld] does not have our assent to prosecute this appeal." The
language of Rule 3:23-9(d) implies express assent must be obtained,
not that there must be "no objection." "The State, and only the
State, can appeal a dismissal, . . . and a citizen, including the
complainant, who has not been designated 'private prosecutor,'
does not have standing." State v. Vitiello, 377 N.J. Super. 452,
455-56 (App. Div. 2005) (citing State v. Carlson, 344 N.J. Super.
521, 525-26 (App. Div. 2001)).
Feld's other arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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