On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket NO. L-3496-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 1, 2009
Before Judges Messano and Alvarez.
Plaintiff Victor Munguia appeals from the Law Division's order of December 5, 2008 that dismissed with prejudice his complaint against defendant, City of Elizabeth (Elizabeth). We affirm.
The facts are essentially undisputed. Plaintiff is a taxicab driver licensed by Elizabeth and permitted to operate at Terminal A, Liberty International Airport, which is located in Elizabeth. As a result of The Port Authority of New York and New Jersey's desire to increase the number of cabs serving Terminal A, Elizabeth adopted Ordinance No. 3490 (the Ordinance) in 2003. It established a procedure for the issuance of 136 additional "Airport Taxicab Certificates of Public Convenience and Necessity" (certificates). Plaintiff was notified that he would receive one of the certificates that were to be issued to eligible drivers based upon seniority.*fn1
In July 2004, before any new certificates were actually issued, a cab driver not eligible to receive one under the Ordinance, Mohamed A. Tawfik, challenged the constitutionality of the distribution scheme. The trial judge initially dismissed his complaint, granting Elizabeth summary judgment. On appeal, however, we reversed and remanded the matter for the development of a more complete record. Mohamed A. Tawfik v. City of Elizabeth, A-6632-04 (App. Div. April 5, 2006). After remand, on June 7, 2007, now-retired Judge Walter R. Barisonek concluded the Ordinance was unconstitutional on equal protection grounds, declared it invalid, and entered judgment in Tawfik's favor.
On October 20, 2008, plaintiff Enrique Urrutia filed a pro se complaint and order to show cause seeking injunctive relief claiming he was entitled to a certificate. On November 7, 2008, plaintiff, along with Urrutia and ten other cab drivers, filed an amended pro se complaint in which they all alleged entitlement to a certificate "under the terms of th[e] Ordinance." They further claimed that Elizabeth's refusal to issue the certificates was a violation of their "equal protection and due process rights under the Federal and State Constitution[s]."
Elizabeth moved to dismiss. It argued that the Tawfik litigation fully decided the constitutionality of the Ordinance, that the doctrine of res judicata applied to that issue, and that plaintiffs, who sought relief based upon the Ordinance, failed to state a cause of action. The City also contended that plaintiffs' claims should be dismissed under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3, because of a lack of notice.
Plaintiffs countered by arguing that material facts in dispute precluded judgment on the merits, and that their claim was not foreclosed by the earlier litigation striking down the Ordinance.*fn2
In a brief written decision, the motion judge concluded that plaintiffs failed to file a timely notice of claim under the TCA, and further found that pursuant to N.J.S.A. 59:2-5, Elizabeth could not be liable for any damage plaintiffs suffered as a result of its failure to issue a certificate. The judge also noted, "[a]dditionally... the statute under which [plaintiffs] claim relief is currently considered unconstitutional and, therefore, inoperative." He granted Elizabeth's motion, dismissed the complaint, and entered the order under review.
Before us, plaintiff contends that the notice provisions of the TCA should not bar his claim because he was unaware of the decision in the Tawfik litigation and was never advised by Elizabeth that his certificate was not issued as a result.*fn3 In this regard, Elizabeth repeats the arguments it raised before the motion judge. However, we need not address the applicability of the notice provisions of the TCA to plaintiff's claim because we agree with Elizabeth and the motion judge that plaintiff had no colorable claim for relief once the Ordinance was declared unconstitutional and inoperative.
The right of a municipality to regulate the licensing of taxicabs within its borders has been long-recognized. See, e.g., Naseef v. Cord, Inc., 90 N.J. Super. 135, 140 (App. Div.), aff'd 48 N.J. 317 (1966). It is axiomatic that plaintiff cannot claim a right that stems from the enforcement of the Ordinance if the legislation itself is unconstitutional.
Plaintiff does not claim, however, that Elizabeth may exercise it police powers in an unconstitutional manner simply because it is to his benefit. Rather, he argues that Judge Barisonek's holding in the Tawfik litigation was limited to only a portion of the Ordinance's certificate distribution scheme, in particular Section 1(E)(1). Because the Ordinance contained a severability clause, his ...