On appeal from the Superior Court, Law Division, Mercer County.
Allcorn, Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[182 NJSuper Page 62] Plaintiff, a resident and taxpayer in New Jersey, brought this action by filing a complaint with Judge Paul G. Levy in the Superior Court, Law Division, Mercer County, on November 24, 1981. Plaintiff alleged that he owns property in Ewing Township, Mercer County, which he leases to the State of New Jersey for use by the Department of Environmental Protection, Division of Water Resources, and for other state agencies. The complaint further alleged that the Legislature by L. 1981, c. 120, N.J.S.A. 52:18A-78.1 et seq. , had established the New Jersey Building Authority (hereinafter "Authority") for the purpose of constructing and operating office buildings and related facilities to meet the needs of agencies of the State. Plaintiff further set forth that the Authority could carry out its functions by borrowing up to $250,000,000 and by constructing and otherwise providing space for state agencies. Plaintiff noted that under L. 1981, c. 120, the debts of the Authority are not general obligations of the State and that neither the credit of the State nor its taxing authority is pledged to pay the debts of the Authority. Plaintiff maintained that the Authority would raise revenues to satisfy its obligations by leasing its facilities to the State. Plaintiff also noted that no project, the costs of which are to exceed $100,000, could be undertaken unless approved by a concurrent resolution of the Legislature. Plaintiff alleged that L. 1981, c.
120, was unconstitutional because (1) it violated the debt limitations in the New Jersey Constitution; (2) the provision for legislative oversight violated the state constitutional requirement that the powers of the three branches of government be separate and (3) the Legislature, though obligated to do so, had not required that the Governor approve the concurrent resolution.
Plaintiff's complaint caused defendants immediate difficulties, for defendants had intended to execute a contract for the sale of $135,000,000 in bonds on November 25, 1981. Accordingly, defendants requested the trial court to schedule the return on the order to show cause on the same day that the complaint was filed. The trial judge granted this request notwithstanding plaintiff's objections to the procedure. At the return defendants were permitted to move orally to dismiss. After hearing argument Judge Levy in an oral opinion found that there was no valid basis for any of plaintiff's claims. Accordingly, he ordered the complaint dismissed. On the same day he signed the order dismissing the action.
Notwithstanding defendants' speedy success at the trial level they conceived that the litigation, since not terminated on the appellate level, was still an impediment to the sale of the bonds. Accordingly, defendants on November 25, 1981, on notice to plaintiff, made application to this court to shorten the time within which plaintiff could appeal from the order of dismissal. We heard argument on this request on that day and granted defendants substantial relief. We ordered that plaintiff, if he appealed, was to do so on or before November 30, 1981. We further provided that if plaintiff appealed, briefs were to be filed by December 4, 1981. Argument was scheduled before us on December 14, 1981. Plaintiff in fact appealed and briefs were filed and oral argument held as scheduled. At the conclusion of oral argument we announced from the bench that the judgment was affirmed and that this opinion would follow.
Plaintiff raises preliminary procedural objections. He points out that when he filed the complaint the trial judge issued an order for defendants to show cause later on the same day why a preliminary injunction should not be issued restraining defendants from selling bonds. Defendants then orally moved to dismiss the complaint. The judge entertained and granted the motion. Plaintiff maintains that the judge could, at the return of the order to show cause, grant or deny the preliminary relief but could not dismiss the action. Plaintiff asserts that there were factual matters to resolve, whether the Authority was an autonomous agency, whether the proposed lease to the State was a true lease or an installment contract for sale, whether there was an inappropriate intrusion by the Legislature into an executive function and whether the legislation was a device to circumvent the debt limitation clause of our State Constitution. Plaintiff further asserts that he was denied the right of discovery to establish a factual basis for his allegations.
Plaintiff also objects to the acceleration of the appellate proceedings. He seems to suggest that this court lacks authority to require him to appeal within the abbreviated period and that in any event there was no reason to grant such relief.
Plaintiff, of course, also raises substantive challenges to the sale of the bonds and to L. 1981, c. 120. He maintains that the sale of bonds violates the debt limitation clause of our State Constitution, N.J.Const. (1947), Art. VIII, § II, par. 3; that the provision for legislative oversight violates the constitutional requirement of separation of powers, Id. , Art. III and that the concurrent resolution is invalid since there is no provision for presentation to the Governor for approval or veto. Id. , Art. V, § I, par. 14(a).
We deal first with plaintiff's procedural objections. Ordinarily a trial judge should not dismiss an action as summarily as was done here. A motion to dismiss should be made on notice to plaintiff. R. 4:6-2; R. 4:6-3. If matters outside the pleadings are considered, it is treated as a motion for summary
judgment. R. 4:6-2. Yet there can be no doubt that the judge in fact had the power to dismiss the action on the same day that the complaint was filed. R. 1:6-2 provides that a court may permit a motion to be made orally. R. 1:6-3 permits the court to provide by order for the time for hearing of a motion. Thus, the rules clearly permit a judge to schedule an oral motion to dismiss on short notice. Even absent such clear authority, R. 1:1-2 provides that to avoid an injustice the judge may relax or dispense with any rule unless otherwise precluded. In the circumstances we have no doubt that the judge had the power to dismiss the complaint on defendants' application on the day it was filed.
The more substantial objection to the procedure in the Law Division relates to whether the court properly exercised its discretion in hearing the matter so summarily. Surely only an extraordinary situation could justify such a procedure. Here the judge was dealing with a situation that beyond doubt was emergent in nature. It is undisputed that the Authority intended to sign an agreement on November 25, 1981, the day following the filing of the complaint, to sell $135,000,000 worth of bonds to build facilities principally for the use of state agencies. The construction costs alone for the project were contemplated to be $113,000,000. It is a matter of common knowledge that interest rates on public bonds (as well as other obligations) vary. The Authority had determined that the appropriate time to contract for the sale of this substantial bond issue had arrived. Yet the pendency of the litigation precluded the Authority from marketing its securities. Defendants assert and plaintiff has not otherwise suggested that the litigation renders the bonds unmarketable. We further observe that the summary relief was being sought against plaintiff who had after all initiated the action and thus presumably should have been in a position to
support his allegations.*fn1 The totality of the circumstances including the lack of material factual disputes, the public importance of the project, the large amount in controversy, the ongoing chilling effect of the litigation on the financing efforts of the Authority and the fact that relief was being sought by defendants has convinced us that Judge Levy properly disposed of the matter in this unusual fashion.
However, we add a caveat. We are not to be understood generally to approve the procedure followed here or to suggest that it would frequently be appropriate. It will be a rare case in which a complaint should be dismissed on such short notice without a plaintiff being given a more substantial opportunity to support his complaint. We simply hold that in the unique circumstances here that the trial court properly exercised its discretion to hear the matter so summarily.
There is no doubt that this court had the power to accelerate the time for plaintiff to file any appeal and, in the event of appeal, to shorten the time for filing and service of briefs. The Supreme Court in DeSimone v. Greater Englewood Housing Corp. No. 1 , 56 N.J. 428 (1970), followed exactly that procedure. There the Appellate Division had jurisdiction over a pending appeal from a judgment entered in favor of defendants in connection with a low- and moderate-income housing project in Englewood. A second judgment had also been rendered in favor of defendants in the trial court. Defendants then moved for direct certification of the first appeal and to compel plaintiffs to appeal, if at all, from the second judgment by a short date. The Supreme Court granted certification of the first appeal and did fix accelerated dates for ...