Three Contracts, But Only One Arbitration Provision, Means Arbitration Cannot Be Compelled

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

What happens when the same parties enter into three contracts, all related to the same underlying services, the first two of which require the parties to litigate any disputes while the third provides that the parties “may” settle any disputes through binding arbitration? When a dispute arises, do you have to sue in court, can you arbitrate instead, if one side chooses arbitration, is the other side stuck with that choice? These were the issues in the Appellate Division’s recent decision in Medford Township School District v. Schneider Electric Building Americas, Inc.

In Medford Township, plaintiff contracted with defendant to “design and implement upgrades to several of [plaintiff’s] schools and its transportation and operations center.” The initial contract between the parties did not contain an arbitration provision. To the contrary, it contained a provision requiring that any disputes be resolved under the law of the state where the services were provided, and in the “federal, state, or municipal courts serving the county in which the services [were] performed.”

Some time later, plaintiff issued a request for proposals (RFP) for a related job. The RFP did not contain an arbitration provision. Instead, it required the winning bidder to agree that “any action or proceeding that [arose] in any manner out of performance of the RFP [or the resulting contract] . . . shall be litigated in the Superior Court of New Jersey, Burlington County.”

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Lawsuit Challenging E-ZPass Administrative Fee Revived

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

The Appellate Division’s recent decision in Long v. New Jersey Turnpike Authority dealt with a topic that is likely familiar to many New Jersey residents — the administrative fee assessed when you (allegedly) go through an E-ZPass lane without paying the toll. In the interest of full disclosure, I am very much not neutral on this issue. I recently received three notices from E-ZPass claiming that I went through toll plazas without paying. The tolls I allegedly failed to pay amounted to $20.45, but the administrative fee for each is $50, so my $20.45 in allegedly unpaid tolls may now cost me $220.45. But I digress.

First, some background. New Jersey law allows the Turnpike Authority to establish procedures for addressing “violations of [its] toll collection monitoring systems” (i.e., E-ZPass). Among other things, the Turnpike Authority may send “an advisory and payment request” to alleged toll violators, providing them “with the opportunity to resolve the matter prior to the issuance of a summons and complaint that charges a violation of the toll collection monitoring system regulations.” As part of this “advisory and payment request,” the Authority may require that the alleged violator pay “the proper toll and a reasonable administrative fee established by the authority and based upon the actual cost of processing and collecting the violation.” This administrative fee was originally set at $25 but was later raised to $50.

In Long, petitioners were two “E-ZPass toll violators” who filed a petition with the New Jersey Turnpike Authority challenging the $50 administrative fee. Petitioners challenged both the constitutionality of the regulation establishing the administrative fee (arguing that the Authority violated its rule-making authority, violated due process, etc.), and the amount of the fee itself, arguing that $50 was excessive because it was “unrelated to the actual costs of enforcement.” The Authority denied their petition and petitioners appealed to the Appellate Division.

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Lawyer Loses Challenge To Rule Limiting The Amount Of Time He Could Speak At City Council Meeting

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

There is a lawyer joke in here somewhere about lawyers suing to get more time to speak or how someone should sue to force lawyers to talk less. Potential jokes aside, the issue in Feld v. City of Orange was an interesting one. In Feld, plaintiff challenged a municipal ordinance that reduced, from ten minutes to five minutes, the time members of the public could speak on certain matters at city council hearings. Plaintiff claimed that this ordinance violated his First Amendment right to free speech. Spoiler Alert: He lost. But the issue and the decision are nonetheless interesting.

Feld was the latest chapter in litigation that has been raging between plaintiff, a lawyer, acting on behalf of himself and his parents' business, and the City of Orange for years. (In a prior decision, the Appellate Division noted that plaintiff considered himself a "zealous gadfly" and a "radical barrister.") At some point during this long-running battle, the city adopted an ordinance "that reduced the time from ten minutes to five that individual members of the public could speak at City Council meetings on general issues, agenda items or second readings of ordinances before adoption." The city council claimed the change was necessary because "council meetings can extend late into the evening or early into the next day" and this "discourages, if not precludes[,] a fair opportunity to be heard by other members of the public." The city council further claimed that, "without appropriate and rational limitations, the rights of all public speakers [would be] curtailed and undermined." The city council also noted that other municipalities limited the time for speaking during public meetings to five minutes.

The underlying issue in Feld involved plaintiff's objection to the city council's adoption of a resolution that allowed the mayor to sign a lease and option to buy a building owned by the YWCA of Orange, which was in bankruptcy. He challenged the resolution when it was before the city council, and, after it passed, filed a 257 paragraph complaint in lieu of prerogative writs seeking to have it invalidated. As part of this complaint, he also challenged the rule reducing the amount of time members of the public could speak at city council hearings. After filing his complaint, plaintiff filed an order to show seeking, among other things, to restrain the city from enforcing the five-minute rule while the lawsuit was pending. The trial court heard oral argument on the order to show cause, and took testimony from a witness on behalf of the city, who testified that the rule was necessary to "administer the Council meetings more efficiently," and that it was an attempt to "make sure that all of the comments are heard and that everyone gets a chance to talk."

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In Honor Of National Hot Dog Day . . .

For those of you who don't know (like me until a few minutes ago, thank you Twitter), today is national hot dog day. In my efforts to try to be relevant, I thought I would post something about hot dogs and the law. A Westlaw search of "hot dog" in the New Jersey database yields 51 results. Most of these cases are not terribly interesting, but one caught my eye for extolling the virtues of "peddlers" selling hot dogs on the street (known to many as "dirty water dogs").

In Brown v. City of Newark, 113 N.J. 565 (1989), the New Jersey Supreme Court was faced with the question of whether Newark's municipal peddling ordinance was constitutional. A "peddler" was defined by Newark as: "any person commonly referred to either as a peddler or hawker, who goes from place to place or from house to house by traveling on the streets and carries with him goods, wares and merchandise for the purpose of selling or delivering them to consumers . . . ." The Supreme Court noted that peddling was a legitimate occupation, but was subject to reasonable regulation. The ordinance at issue in Brown, among other things, required: (1) that peddlers move unless they were making a sale; (2) required that peddlers avoid creating nuisances; and (3) restricted the size and location of peddlers' carts. A group of peddlers challenged the ordinance. The trial court ruled in their favor. The Appellate Division affirmed (mostly) as did the Supreme Court.

Of particular concern for us on national hot dog day, however, was the court's musing about the sale of hot dogs by peddlers:

The problem is that the municipal regulator is squeezed at both ends of the spectrum. Generally a municipality is forbidden to set aside a portion of its streets as a marketplace where space may be used by peddlers for the sale of merchandise. Even the peddler's license afforded by statutory grace to any veteran . . . does not carry with it a license to sell “refreshments or merchandise at a fixed stand.” The best that a municipality can do is oversee an uneasy alliance between competing peddlers, consumers, and the demands of the public in maintaining fixed zoning boundaries. This is no easy burden, as the “hot dog wars” of Atlantic City attest.

Part of the reason for the regulatory stalemate is the ambivalence that we feel toward street peddlers. Many of us retain images of peddlers-past who enhanced our neighborhoods. Others enjoy the ambiance of a hot dog alfresco or savor chestnuts roasting on an urban street. Those are the pleasant aspects of peddling. The unpleasant part is that we have a sense as a community that we do not want trays of sausages and costume jewelry camped outside of our best retail stores. The problem thus requires maintaining a delicate balance between the nostalgic aspects of peddling and the intrusive aspects.

I, for one, enjoy hot dogs, al fresco and otherwise, but I am not sure I have ever thought of a dirty-water-dog, or the stand from which I purchased it, as creating "ambiance." Regardless, happy national hot dog day.