Once again, a recent Appellate Division Panel opinion has environmental lawyers and their clients realizing that the New Jersey Department of Environmental Protection (“DEP”) may collect penalties in the state’s municipal courts.  This time, the case concerned penalties assessed by DEP for failure to follow state site remediation requirements imposed by the Site Remediation and Reform Act.  The court’s holding that municipal courts have jurisdiction to impose such civil penalties is not surprising.  Yet, for some reason, being hauled into municipal court is often an unpleasant surprise to those who are.

Maybe that reason is unfamiliarity with the municipal courts themselves.  Every one of New Jersey’s 565 municipalities either have individual stand-alone courts, share judicial or administrative service with another municipal court or are part of joint municipal courts. Each court has at least one judge selected by the municipality or municipalities, one prosecutor and one public defender.  Municipal courts have limited jurisdiction and cases are tried without a jury.  Cases before these courts generally are limited to motor vehicle and parking tickets, disorderly persons offenses and petty disorderly persons offenses, for which a jail sentence is up to six months, municipal ordinance offenses, and other offenses which include fish and game violations.  As between the Superior Court and a municipal court, municipal court cases usually come to trial more quickly.  Unless terms for payment are available, fines are immediately payable to the court clerk.  Appeal is to the Superior Court and if the judgment is reversed, fines and costs will be returned.

Judges are political appointments by the municipal governments with a three year term.  Most of these courts and judges, except in rural areas, are busy.  Over six million cases come through New Jersey municipal courts each year.  Out of those cases, approximately 50 are DEP penalty assessment actions.  So the statewide odds of a municipal court case being a DEP penalty enforcement action in the municipal court in one year is roughly 120,000 to one.

In seeking to obtain a penalty, DEP has two other alternatives besides municipal court.  One is an action in the Superior Court.  Generally such actions are filed as a summary action to the Penalty Enforcement Law (N.J.S.A. 2A:58-10 et seq.) without the right to a jury.  It may take some time for the matter to move forward in the Superior Court; certainly more slowly than in the municipal court.  When the case reaches a judge, that judge will have been appointed by the governor and approved by the state senate and he or she will hear testimony on any disputed issues and set any penalty.  There’s a greater chance that a Superior Court judge will have some experience with environmental litigation than will a municipal judge.  DEP’s penalties, in many cases, run up to $50,000 per day for each violation and each day the violation continues is a separate violation, a penalty range rarely if ever seen by a municipal court judge as municipal judges deal with fines of $2,000 or less in most of their cases.

The third and most common way DEP may seek a penalty is in an administrative action that starts with the issuance of an Administrative Order and Notice of Civil Administrative Penalty Assessment.  The alleged violator may timely request an administrative hearing before a judge from the Office of Administrative Law and, at a hearing over genuinely disputed fact, present its case.  These are the judges most likely to be familiar on a day-to-day basis with environmental law and penalties.  However, these judges are not the last word on a matter because the law allows the DEP Commissioner to overturn an OAL judge’s opinion.  Appeal is to the Appellate Division.

So, why is being in the municipal court defending a DEP complaint an unpleasant surprise?  Because, in general, the municipal court judge is surprised; surprised if he or she is unfamiliar with the Special Form of Complaint and Summon in Penalty Enforcement Proceedings, and surprised that there’s an environmental issue present in the very municipality that appointed him or her as a judge.  Because the DEP often sends to court only the inspector who signed the complaint, counsel for the alleged violator may be asked by the court to explain the court’s jurisdiction and its application of the Penalty Enforcement Law, none of which should be his or her job.  Finally, no matter how often an alleged violator is told by counsel that the court is impartial and fair, there is always a chance the alleged violator will believe the court interprets the facts and sets the penalty to enable the DEP, an agency the court rarely sees before it, to accomplish its perceived statutory responsibilities.

But, of course, the alleged violator does not pick the courts or the OAL.  The DEP does.  It’s legal forum shopping and the DEP’s decision will be the one that best advantages the DEP, not the alleged violator.