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In 2017, the Jackson Township Police Department suspended Accurate Towing Service and Childs' Wrecking Yard, Inc. from their list of companies that provide towing services on call.

Subsequently, they filed a lawsuit, claiming, among other things, that the suspension violated its constitutional rights to due process and equal protection. 

In a published decision, the New Jersey Appellate Division today upheld the suspension and dismissed the complaint entirely.

Jackson Township maintains two separate lists for towing operators. One list is for light-duty vehicles. The second list is for medium-and heavy-duty vehicles. These towing operators are called by the police department as needed to respond to crashes.

Pursuant to the Township's ordinance, the applications to be on these lists are first reviewed by the Traffic Services Unit. Following their approval, the Chief has the final authority to select the persons and firms who are placed on the Township's lists. 

In overseeing the Township's lists and licenses, the Chief has the power to "establish reasonable rules and regulations governing the inspection and operation of towers and wreckers." In addition, the Chief has "the power to suspend or revoke a tower or wrecker license for violations of safety standards or rules and regulations of operation." 

Before 2017, Accurate Towing Service and Childs' Wrecking Yard, Inc. had been on the Township's two towing lists for several years. 

On January 6, 2017, Police Officer Trevor Crowley, who worked in the Traffic Safety Unit, sent a letter notifying the company that it was being suspended from the towing lists.

The letter stated:

Multiple allegations of improper customer billing[,] as well as other Township ordinance violations, have been made against your company, and are currently being investigated by the Police Department. As such, you are being suspended from both the Light-Duty and Heavy-Duty towing rotation indefinitely, until such time as the matter is thoroughly investigated.

If you have any questions or concerns, you may contact me at the office.

Shortly after receiving that letter, the company's principal contacted Crowley and met with him. A company representative also wrote to the Township's Chief, Administrator, Clerk, and Mayor seeking a more detailed explanation for plaintiff's suspension and to be restored to the lists.

On February 24, 2017, the company filed a lawsuit in Superior Court, in essence, seeking to be restored to the Township's towing lists.

Subsequently, in March 2017, the Township's police department issued twelve summonses to the company, alleging that they had improperly billed for services they had provided in November 2016. 

On April 18, 2017, a search warrant was issued and executed at the company's office in Jackson. Thereafter, in July 2017, the Township issued an additional fourteen summonses charging plaintiff with overbilling for services it had provided between July 2016 and February 2017.

The summonses were all filed and adjudicated in municipal court. In December 2018, the company pled guilty to four violations it had committed in 2016. The company paid roughly $330 in fines and costs for each of those violations, and the remaining charges were dismissed.

The following month, in January 2019, the company submitted an application to the Township's police department requesting to be placed back on the Township's towing lists. Following an inspection of their facilities, the police department accepted them back on their lists.

In the meantime, the company pursued their claims in Civil Court. After amending their complaint 3 times, they asserted nine causes of action. Five claims were based on alleged violations of their constitutional rights to procedural and substantive due process and equal protection. The remaining claims alleged breaches of contract, conspiracy, tortious interference, arbitrary action, and failure to train and supervise.

On July 13, 2021, the trial court dismissed the lawsuit with prejudice. In addressing the procedural due process claims, the trial court held that the company had been accorded the process due its right. The court pointed out that they were given notice and had an opportunity to be heard both in the municipal court action and in the action it filed in the Law Division.

Addressing their substantive due process claim, the court held that they should have asserted that claim in the municipal court action and therefore they were barred from raising it in Civil Court. In reaching that conclusion, the trial court pointed out that the company had already challenged the constitutionality of the search warrant issued in April 2017 in the municipal court but that court had rejected that constitutional challenge.

Concerning plaintiff's equal protection claims, the trial court reasoned that the company had not established that it was a class of one or that it was subject to selective enforcement.

Specifically, the judge based this decision on a U.S. Supreme Court ruling which required a plaintiff seeking to impose liability on a municipality for a constitutional violation to "identify a municipal policy or custom that caused the plaintiff's alleged injury."

Finally, the judge found that Officer Crowley was entitled to qualified immunity. In that regard, the court found that there was no evidence that he acted in a clearly unlawful manner in sending the letter suspending the company while the police department investigated allegations of misconduct.

The company appealed this decision, arguing that they had a "property interest" in remaining on the list, i.e., a "right to be there," which was protected by constitutional due process.

In a published decision, Appellate Division Judges Gilson, Rose, and Messano disagreed, noting that the Township's ordinances does accord a fair amount of discretion to the Chief in selecting firms and persons for the towing lists. Additionally, the ordinance provides that towing operators are approved only for one single year at a time.

"Accordingly, while a tower cannot be suspended or removed from the list without cause, in this case, the company was accorded sufficient notice and an opportunity to be heard concerning its suspension from the Township's towing lists. Chapter 388 expressly informed the company that the Chief and police officers working in the Traffic Services Unit could suspend its towing license. Consistent with that authority, Officer Crowley sent them a letter informing it that they were being suspended. The letter also told them that the suspension was being implemented because it was under investigation for violations of the "ordinance."

"Their representatives then had an opportunity to meet with members of the Township police department. At that time, they were on notice that it was under investigation for violations. Within two months, they were then served with twelve summonses identifying specific violations. They were thereafter accorded a full opportunity to be heard in municipal court concerning those violations. Given the limited nature of their annual license, they were accorded all the process due. 

"They argue that they were "indefinitely" suspended. The Township's annual towing license made it clear that they could be reviewed annually. Consequently, the license was not an indefinite or permanent license. Moreover, the Township police department had an obligation to protect the public and to ensure that towers were not overbilling for services," the court wrote.

The company has claimed that they were only issued numerous summonses in response to filing their lawsuit. The Court rejected that argument as "unsupported by the record" being that the company did ultimately plead guilty to four of those summonses.

Consequently, the court affirmed the summary judgment dismissal of the company's claims.

(By the way, although the police department did approve the company to be put back on their list in 2019, in subsequent years they chose not to apply to be on the list).

This case ruling is "published," which means that it sets a legal precedent and can be cited in future cases. 

The legal precedent that this case establishes is that a towing operator only has "limited property interest" when placed on the Township's towing lists, and therefore they also only have "limited constitutional due process rights" when suspended from the lists.

This case ruling further highlights that when a substantive portion of the claims are adjudicated in municipal court (as was the case in this instance once the company was issued summonses for their violations), the higher courts can reject later constitutional substantive due process and equal protection rights, by saying that those claims should have been put forward in municipal court.

The towing operator was represented by Attorneys Christina Vassiliou Harvey and Eric H. Lubin Esq. for the law firm of Lomurro, Munson, Comer, Brown & Schottland, LLC.

The Township and Police Chief Matthew Kunz were represented by Attorneys Patrick F. Varga and Thomas E. Monahan Esq. of the law firm of Dasti, Murphy, McGuckin, Ulaky, Koutsouris & Connors.

Officer Trevor Crowley was represented by Attorneys Kevin B. Riordan and Gary P. McLean Esq.

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