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Young v. Byrne

Decided: July 29, 1976.

DONALD C. YOUNG, PLAINTIFF,
v.
BRENDAN T. BYRNE, GOVERNOR OF THE STATE OF NEW JERSEY. STATE OF NEW JERSEY, NEW JERSEY STATE SENATE, GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, AND THE CITY OF ATLANTIC CITY, DEFENDANTS. JOSEPH A. LAZAROW, INDIVIDUALLY AND AS CHAIRMAN, AND FRANK J. SIRACUSA, INDIVIDUALLY AND AS TREASURER OF, AND THE COMMITTEE TO REBUILD ATLANTIC CITY, PLAINTIFFS, V. RAY KRAMER, MAYOR OF ASBURY PARK AND THE CITY COUNCIL OF ASBURY PARK, AND ALAN KLIGERMAN, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS



Gruccio, J.s.c.

Gruccio

This is a declaratory judgment action to determine the constitutionality of the 1976 Assembly Concurrent Resolution No. 126 (ACR-126) which deals with casino gambling under Article IX, paragraph 7 of the New Jersey Constitution (1947). This issue is before the court in the two above-captioned matters.

Plaintiff in the first matter is Donald C. Young. Plaintiff operates a business within Atlantic City, the municipality affected by ACR-126, and philosophically supports the casino gambling proposition. Defendants are the Governor of New Jersey, Brendan T. Byrne, the State of New Jersey, the Senate and General Assembly of New Jersey and Atlantic City. Defendants agree with plaintiff that ACR-126 is constitutional under Article IX, paragraph 7 and may properly be submitted to the voters on the November 1976 ballot.

Plaintiffs in the other matter are Joseph A. Lazarow and Frank J. Siracusa, individually and as chairman and treasurer, respectively, of the Committee to Rebuild Atlantic City. Defendants are Ray Kramer, Mayor of Asbury Park, the City Council of Asbury Park and Alan Kligerman. Defendants Kramer and the City of Asbury Park have been opposed to ACR-126 but chose not to file an answer or appear at oral argument. Defendant Kligerman is a member of the "No Dice Committee" which opposed the original casino gambling proposal, 1974 Resolution, ACR-128 and he has expressed opposition to ACR-126.

Plaintiff Young moved to consolidate both matters and the Attorney General moved to intervene in Lazarow v. Kramer. The court granted both motions.

There are procedural questions to be answered before I may rule on the constitutionality of ACR-126. The first procedural question is whether this action is properly before the court under the Uniform Declaratory Judgment Act, N.J.S.A. 2A:16-50 et seq. The purpose of the Uniform Declaratory Judgment Act is "to settle and afford relief

from uncertainty and insecurity with respect to rights, status and other legal relations." N.J.S.A. 2A:16-51. However, to maintain a declaratory judgment action there must be a "justiciable controversy" between adverse parties Unsatisfied Claim and Judgment Fund Board v. Concord Ins. Co. , 110 N.J. Super. 191 (Law Div. 1970); Trustees of Rutgers College in New Jersey v. Richman , 41 N.J. Super. 259 (Ch. Div. 1956); New Jersey Turnpike Auth. v. Parsons , 3 N.J. 235 (1949), and plaintiff must have an interest in the subject matter of the suit. New Jersey Home Builders Ass'n v. Division on Civil Rights , 81 N.J. Super. 243 (Ch. Div. 1963), aff'd 45 N.J. 301 (1965). In Lazarow an actual controversy is clearly evidenced by defendants' opposition to ACR-126 and in particular by defendant Kligerman's answer and motion to have ACR-126 declared unconstitutional. Plaintiffs interest in the constitutionality of ACR-126 is derived from their present efforts to raise funds and to educate the public on the merits of ACR-126. The uncertainty concerning the constitutionality of ACR-126 is impairing plaintiffs' fund raising activities, which funds are necessary to mount a campaign to educate the public on the merits of ACR-126, and therefore they have a direct interest in the subject matter of this controversy.

In Young the Attorney General challenges whether plaintiff has met the standing and controversy requirements of the Declaratory Judgment Act. I find it unnecessary to rule on the Attorney General's position regarding plaintiff Young since both matters have been consolidated and both deal with the constitutionality of ACR-126.

The second procedural question was raised by defendant Kligerman. He alleged that plaintiffs in Kramer had not complied with R. 4:67-2(a) which provides that in summary actions the complaint must be verified or accompanied by affidavit. At oral argument defendant withdrew this alleged procedural defect since a verified amended complaint was subsequently filed.

Before the court immerses itself in the constitutional issue, a review of the factual background is necessary. In 1974 the State Legislature adopted ACR-128 which proposed a constitutional amendment to allow statewide casino gambling. ACR-128 was submitted to the electorate in the 1974 general election, at which time ACR-128 was defeated. Within two years thereafter the Legislature adopted ACR-126 which proposes to amend the New Jersey Constitution to allow casino gambling in Atlantic City exclusively. ACR-126 is to be submitted to the electorate in the 1976 general election in November.

An issue as to the constitutionality of ACR-126 arises from a reading of Article IX, paragraph 7 of the New Jersey ...


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