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Ferrara v. Seaside Heights Borough

June 7, 2010

ELIZABETH FERRARA, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
SEASIDE HEIGHTS BOROUGH, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3700-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 14, 2010

Before Judges Axelrad and Sapp-Peterson.

Plaintiff, Elizabeth Ferrara, appeals from the July 31, 2009 order of the Law Division granting summary judgment, dismissing plaintiff's complaint against the Borough of Seaside Heights (Borough), in which she challenged the sentence she received in connection with her guilty plea to a violation of the Borough's municipal ordinance that prohibits underage possession of alcoholic beverages on private property. We affirm.

N.J.S.A. 40:48-1.2 authorizes municipalities to adopt ordinances prohibiting underage persons from possessing and consuming alcohol on private property, punishable by a fine of $250 for a first offense and $350 for any subsequent offense. Consistent with this statute, the Borough enacted Municipal Ordinance 17-37, Possession of Alcoholic Beverage Under Age 21 While on Private Property ("the ordinance"). The language in the ordinance mirrors the language contained in N.J.S.A. 40:48-1.2.

On January 22, 2008, plaintiff was issued a summons charging her with violating the ordinance. The ordinance was not listed on the summons as an offense for which no court appearance was required. Therefore, in accordance with the instructions on the back of the summons, plaintiff contacted the violations clerk's office and was informed that the penalty for her offense was $383 rather than $250, as set forth in the ordinance. When she appeared at the municipal court for the hearing on the charge and raised the discrepancy between the penalty established in the ordinance and what she was told, it was explained that the additional $100 was imposed by the court in lieu of the imposition of an additional requirement that she perform community service, and the $33 represented court costs. Plaintiff elected not to appear before the judge. Instead, she waived her right to trial and pled guilty to the charge. She paid the $383, but before doing so, she signed an affidavit provided by the court that contained the following language:

I understand that I can pay the penalty assessed and the Judge will enter this agreement into the record of the court without my being present. I understand that by signing below, I am accepting this fine and I am waiving my right to a trial and to a lawyer.

In April 2009, plaintiff filed a putative class action lawsuit against the Borough alleging a violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, and unjust enrichment. Plaintiff sought a refund of the money collected in the form of excessive fines for violations of the ordinance. Plaintiff also sought injunctive relief, enjoining the municipal court from imposing penalties greater than that which is prescribed by the ordinance.

When the Borough failed to respond to discovery demands, plaintiff filed a motion to compel discovery. The Borough then filed a motion for summary judgment, arguing that it was not a proper party to the action as it is expressly prohibited from directing the actions of the municipal court judge. The Borough further argued that plaintiff's remedy for what she claimed was an illegal sentence was to have filed a motion for reconsideration of the penalty imposed with the municipal court, an appeal in Superior Court, or to seek post-conviction relief.

The trial court agreed with the arguments advanced by the Borough and granted summary judgment, dismissing her complaint. The present appeal followed.

Plaintiff raises the following points for our consideration:

[POINT I] THE DOCTRINE OF JUDICIAL IMMUNITY DOES NOT IMMUNIZE THE BOROUGH FROM UNJUST ENRICHMENT THROUGH THE COLLECTION OF ULTRA VIRES PENALTIES COLLECTED BY NON-JUDICIAL OFFICERS AND ...


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