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State of New Jersey
Jersey
State
CHRIS CHRISTIE
CHRISTIE
Governor
G
overnor

ATTORNEY GENERAL
GENERAL
OFFICE OF
OF THE ATTORNEY

PORRINO
CHRISTOPHER S. PORRTNO
CHRISTOPHER

DEPARTMENT OF LAW
LAW AND
ANDPUBLIC
PUBLIC SAFETY
SAFETY
DEPARTMENT

Attorney General
General
Attorney

DIVISION
LAW
D
IVISION OF LAW
PO Box
Box 45029
45029
PO
Newark, NJ
Newark,
NJ 07101
07101

•K
IM GUADAGNO
KIM
GUADAGNO
Lt. Governor
Governor
Lt.

MILLER
ICHELLE MILLER
MICHELLE
M
Acting Director
Director
Acting

M
May
10, 2017
2017
ay 10,
J.S.C.
Honorable
Honorable Kay
J.S.C.
Kay Walcott-Henderson,
Walcott -Henderson,
of
Court
Superior Court
of New Jersey
Jersey
Superior
Division, Mercer
Mercer County
County
Law Division,
1
175
South Broad
Broad Street
Street
75 South
Trenton, New Jersey
Jersey 08608
08608
Trenton,

Inc.
v. Christopher
Technologies,
Christopher
Re: Securus
Technologies,
Inc. v.
Securus
Re:
Governor
of New Jersey,
et al.
al.
Christie,
Governor
of
Jersey, et
Christie,
MER-L-143-17
Docket
No.:
No. : MER-L-143-17
Docket

Dear Judge
Dear
Walcott -Henderson:
Judge Walcott-Henderson:
Defendants
Christie,
This
Office
represents
Defendants
Christopher
Christie,
Christopher
Office
represents
This
General
Christopher
Governor
of
Christopher
S.
Attorney
General
S. Porrino,
Porrino,
Attorney
New Jersey,
Jersey,
of New
G
overnor

of New
Gary
Gary
of
Jersey,
New Jersey,

Jersey
Lanigan,
Commissioner
of the
M.
Commissioner
of
M. Lanigan,
the New
New Jersey

Elizabeth
Commissioner
and Elizabeth
Connolly,
Corrections,
Department
of
and
Connolly,
Commissioner
Department
of Corrections,

of
of

Human Services
above of Human
Services
in the
the
Department
of
in
Department
the aboveJersey
New Jersey
the New

of
referenced matter.
matter. Please
this
letter
brief
in
of aa
accept
this
letter
brief
in lieu
Please accept
lieu
referenced
Dismiss
brief
in
of
Motion
to
of Defendants'
Defendants'
Motion
to Dismiss
in support
support
brief
fformal
ormal
matter.
this
Complaint
in this
Plaintiff Securus'
Complaint
in
matter.
Plaintiff
Securus'
AND STATEMENT
STATEMENTOF
OF FACTS
PROCEDURAL HISTORY
HISTORY AND
FACTS
PROCEDURAL
Law ("RCL"),
("RCL") , found
N.J.S.A.
Control
New
Rate
Rate
Control
Law
found
at
at N.J.S.A.
Jersey's
New Jersey's
ensure
31,
August
2016,
operates
to ensure
30:4-8.12,
enacted on
on August
31,
2016,
operates
to
enacted
3 0:4-8.12,

1
1

County
and County
in State
State and
inmates in
for inmates
service for
telephone service
affordable
affordable telephone
provides:
of the
RCL provides:
the RCL
(a) of
Subsection (a)
institutions. Subsection
nal institutions.
correctional
correctio
person
appropriate person
Treasurer or appropriate
[T]he
[T]he State Treasurer
private
or
private
or
county
the
of
county
the
behalf
on behalf of
on
with
contract with
shall contract
facility shall
nal facility
correctional
correctio
not
shall not
whose rate
rate shall
vendor whose
qualified vendor
the qualified
the
domestic
for domestic
per minute
minute for
. cents per
11 cents
exceed 11
exceed
and who
who
calls and
collect calls
and collect
pre-paid, and
debit, pre-paid,
debit,
service
any
any
service
party
any
party
any
to
bill to
not bill
does
does not
the per
exceeding the
fee exceeding
additional fee
charge
charge or additional
to,
limited
limited
not
but
but
including,
including,
rate,
rate,
minute
minute
account set up fee,
surcharge, account
call surcharge,
any per call
account
monthly account
fee, monthly
fee,
statement
bill statement
bill
fee.
or
refund
maintenance charge,
(a)].
30:4-8.12(a)].
[N.J.S.A. 30:4-8.12
entities
and county
county entities
State and
prohibits State
RCL prohibits
the RCL
above, the
forth above,
As set forth
bills
provider that bills
service provider
telephone service
from contracting with any telephone

calls. Ibid.
domestic calls.
for domestic
minute for
per minute
cents per
of eleven cents
in excess of.eleven
contracts for
that contracts
provides that
also provides
RCL also
n (a)
(a) of the RCL
Subsection
Subsectio
bidding ("ICS") are subject to public bidding
inmate calling services ("ICS")
[...]
forth in [...]
set forth
provisions set
procurement provisions
"the procurement
specifically,
specifically, "the
N.J.S.A.
Statutes". N.J.S.A.
Jersey Statutes".
New Jersey
the New
of the
40A of
Title 40A
of Title
11 of
chapter
chapter 11

30:4-8.12(a).
30:4-8.12(a)

subject to
turn, limits
contracts subject
limits contracts
Title 40A, in turn,
Title

years.
five years.
exceeding five
not exceeding
to terms
terms not
bidding to
public bidding
public

N.J.S.A.

maximum duration
40A:11-4.2; N.J.S.A. 40A:11-15(8) (limiting the maximum
five
to five
ions services
services to
tions
for telecommunica
telecommunicat
contracts for
of public
public contracts
of
.
years)
years).
inmates,
service for inmates,
To further ensure affordable telephone service
part:
in pertinent
pertinent part:
law provides
provides in
the law
of the
(b) of
n (b)
subsection
subsectio

2

"[a]

accept
shall not
not accept
facility shall
correctional facility
private correctional
or private
State, county, or
telephone
for telephone
impose aa surcharge
surcharge for
or impose
commission or
a commission
or receive
or
receive a
the
by the
imposed .by
the charges
to the
charges imposed
addition to
in addition
inmates in
usage by inmates
usage
N.J.S.A.
30:4-8.12(b)
N.J.S.A. 30:4-8.12(b).

provider."
service provider."
telephone service
telephone

Thus,

requiring
from requiring
ional facilities
facilities from
prohibits correctional
subsection (b) prohibits-correct
subsection
thereby
(b) thereby
Subsection (b)
commissions. Subsection
site commissions.
pay site
to pay
providers to
their providers
to providers
providers by
caused to
detriment caused
financial detriment
any financial
offset any
acts
to offset
acts to
N.J.S.A. 30:4-8.12(b).
(a). N.J.S.A.
30:4-8.12(b).
subsection (a)
in subsection
the rate ceiling in
shall
2 shall
"section 2
that: "section
provides that:
also provides
RCL also
, the
the RCL
Importantly,
Importantly
telephone
for inmate
inmate telephone
contract for
renewal contract
orrenewal
new or
any new
to any
apply
apply to
of enactment."
enactment."
the date
after the
date of
or after
in effect
effect on or
services in
services

N.J.

to C. 30:4-8.11
at C.
30:4-8.11 to
as codified
codified at
3R, as
37, S1880
S1880 3R,
P.L.
2016, c. 37,
P.L. 2016,
8.14.

ICS
31, 2016,
August 31,
enacted on August
2016, ICS
was enacted
RCL was
Because
the RCL
Because the

with
must comply
after that
date must
comply with
that date
on or after
into on
entered into
contracts
contracts entered
cap.
rate cap.
cent rate
eleven cent
2's eleven
Section 2's
Section

remain
Existing
Existing contracts
contracts remain

rates
the rates
charge the
continue to charge
providers to continue
the providers
allowing the
exempt, allowing
exempt,

agreed upon at the contract's inception.
the Complaint
Complaint in
provider, filed the
Securus, an ICS provider,
Plaintiff Securus,
Plaintiff
2017.
January 18, 2017.
matter on January
this matter
this

declaration
a declaration
Securus
Securus seeks a

Clauses of the
Process Clauses
Takings and Due Process
that the RCL violates the Takings
New
of the
Clause of
the New
the Takings
Takings Clause
and the
Constitution and
States Constitution
United States
United
the
enjoin the
injunction to enjoin
an injunction
as an
well as
as well
Constitution, as
Jersey Constitution,
Jersey
Complaint,
In its
A-C.
its Complaint,
C. In
¶¶ ACompl. ¶¶
. Compl.
RCL.
the RCL
enforcing the
from
State f
rom enforcing
State
significant costs to install and
incurs significant
Securus explains that it incurs

3
~3

must
that it
must
and that
jails and
it
systems inin jails
systems
telecommunications
operate
telecommunications
operate
per
cents
per minute
minute
cents
thirty-three
at
thirty-three
least
at least
on average,
average,
on
ccharge,
harge,
even.
even.
break
to break
only to
the RCL cap
- only
cap times the
three
times
t hree

Id. at
18.
Id.
¶ 18.
at ¶

similarly-situated
-situated
similarly
the
RCLprohibits
that
prohibits
claims
the RCL
that
Securus also
claims
also
Securus
without
without
prisons
in New
New Jersey
Jersey
prisons
ICS in
ICS
providing
from providing
vendors from
vendors
22.
at
¶ *22.
loss. Id.
at ¶
Id.
at aa loss.
operating
at
operating

two
two
holds
currently
it
holds
that it
currently
that
also represents
represents
Securus also
Securus
of
of New
Jersey:
New Jersey:
in the
the State
of
ICS in
State
of ICS
provision
the provision
for the
for
contracts
c
ontracts
ICS
to
Cape May
ICS to
the Cape
to the
to provide
provide
with
County,
Cape May County,
with Cape
first
he first
tthe
County,
County,
with Passaic
with
second
Passaic
the second
and the
Center; and
Center;
Correctional
County Correctional
County
17. 1
Jail. Id.
Id. at
¶ 17.1
County Jail.
at ¶
Passaic County
the Passaic
to the
ICS to
provide ICS
o provide
tto
Contract
County Contract
Cape May County
The Cape
A.
A. The
26,
On March
March 26,
On

Freeholders
Chosen Freeholders
of Chosen
Board of
Cape
Cape May's
May's Board
2013,
2013,

a
awarding
a
No.
awarding
No. 235-13
235-13
Resolution
Resolution
adopted
adopted
May Board")
Board")
"Cape
(("Cape
install
install
deliver,
"to
deliver,
furnish,
to Securus
"to furnish,
contract to
Securus
contract
competitive
c ompetitive
jail
and
system
telephone
and jail
system
telephone
new inmate
inmate
(1) new
one (1)
one
and
maintain
a
nd maintain

the
documents
Court
the documents
consider
to consider
for
Court to
for this
this
1
proper
is proper
It is
1 It
documents,
documents,
public
well as
as
as public
as well
Complaint
the Complaint
to in
in the
to
rreferred
eferred
Sheet
Sheet
and
and Bid
Tally
Bid Tally
to Bidders
Bidders
to
Notice
Notice
County's
County's
Passaic
Passaic
iincluding
ncluding
at
at
website
public
website
public
County's
County's
on
on Passaic
Passaic
available
available
both
((both
,
s.aspx?bidID=1382&PRINT=YES) 382&PRINT=YES),
http://www.passaiccounty
h ttp://www.passaiccountynj.org/bidnj.org/bids.aspx?bidID-1
it
converting
it
without
converting
Dismiss
to
without
Dismiss
Motion
to
this
Motion
of
context
the
this
in
of
i n the
context
Gandi,
N. Am.
N.
V. Gandi,
Am. V.
Popular
Banco Popular
Banco
motion.
motion.
judgment
summary judgment
tto
a summary
o a
Ins.,
440
Mfrs.
v. New
Jersey
Ins. , 440
New Jersey
Mfrs.
Myska v.
183
161,
(2005) ; Myska
183 (2005);
184 N.J.
161,
184
N.J.
523
523
N.J.
224
dismissed
224
,,
)
N.J.
app.
Div.
app.
dismissed
Div.),
(App.
482 (App.
458, 482
Super.
458,
N.J.
Super.
N.J.
173,
Super.
173,
405 N.J.
N.J.
Super.
405
Promotions,
Promotions,
Bostick
v.
v. Bostick
NJ Sports
Sports
((2015);
2015) ; NJ
N.J.
97
v. New
434 N.J.
Local
New Jersey,
Jersey , 434
Local
97 v.
2007);
Div.
Teamsters
2007) ; Teamsters
178
Div.
(Ch.
1 78 (Ch.
2014) .
2014).
Div.
(App. Div.
412 (App.
393,
Super.
Su er.
393, 412

4
4

Center"
Correctional Center"
May County
County Correctional
Cape May
the Cape
at the
system at
management
management system

Contract"). Ex. A.2
May Contract")
("Cape
("Cape May
for
for a
a

provides
MayContract
Contract provides
TheCape
CapeMay
The

2018.
to March
March 2018.
2013 to
March 2013
from March
term from
five-year
five-year term

Ibid.

term prior
its five-year
five-year term
commenced its
May Contract
Contract commenced
Because the Cape May
to August 31, 2016, the RCL does not impact it.

comply with
to comply
twice to
amended twice
The Cape May Contract has been amended
law.
federal
federal law.

Ibid.

Board
May Board
the Cape
Cape May
11, 2014,
2014, the
March 11,
On March

the
with new rate caps and the
comply with
to comply
168-14 to
Resolution 168-14
adopted Resolution
adopted
the
mandated by the
interstate calls mandated
surcharges for interstate
of surcharges
elimination of
elimination
on
Then, on
Ibid. Then,
("FCC").Ibid.
("FCC")
Commission
CommunicationsCommission
Federal
Federal Communications
173-16
Resolution 173-16
adopted Resolution
May Board
Board adopted
Cape May
23, 2016, the Cape
February 23,
February

of 22
rates of
"call rates
regulating "call
order regulating
FCC order
another FCC
with another
comply with
to comply
payment
the payment
and prohibiting
prohibiting the
types" and
call types"
all call
cents per minute for all

earned. Ibid.
revenues earned.
on revenues
commissions on
of site commissions
Contract
County Contract
Passaic County
The Passaic
B. The
B.
On
On

Chosen
of Chosen
Board of
County Board
Passaic County
the Passaic
2010, the
24, 2010,
April
April 24,

R-10-270
Resolution R-10-270
Freeholders
Freeholders ("Passaic County Board") adopted Resolution

following a
Passaic County
County following
with Passaic
contract with
a contract
Securus a
awarding
awarding Securus
original contract
contract is
The original
B. The
Ex. B.
process. Ex.
bidding process.
competitive
competitive bidding
2010.
dated
dated May 25, 2010.

Contract")
County Contract")
("Passaic
("Passaic -County

Ibid.

The

County Contract
Contract ran from April 1,
Passaic County
term of the Passaic
original term
original
renew at the
option to renew
one-year option
a one-year
with a
2013 with
March 31, 2013
2010
2010 to March

of
the Certification
Certification of
to the
Exhibit AA to
to Exhibit
A" refers
refers to
"Ex. A"
"Ex.
Patricia A. Krogman filed in support of this Motion.
2

5

has
Contract has
County Contract
PassaicCounty
ThePassaic
Ibid. The
County. Ibid.
the County.
of the
option of
option
2016,
on December
December 13,
13, 2016,
recently on
most recently
been amended several times, most
R-16-1024
Resolution R-16-1024
adopted Resolution
Board adopted
County Board
Passaic County
the Passaic
when
when the
basis,
month-to-month basis,
extension, on aa month-to-month
additional extension,
ng an additional
authorizing
authorizi
eliminating
and eliminating
eleven cents
cents and
at eleven
rate at
capping Securus' per minute rate
time as
such time
RCL until
until such
the RCL
with the
comply with
to comply
commissions to
site
site commissions
and
("RFP") and
for Proposals
Proposals ("RFP")
Request for
new Request
issues a new
County issues
Passaic
Passaic County

contract. Ibid.
of contract.
award of
new award
recommends
recommends aa new
RFPissued RFPBoard issued
County Board
Passaic County
the Passaic
2017, the
February 15, 2017,
On February
the
ICS contract
contract for the
renewal ICS
on its renewal
bidders on
soliciting bidders
17-005 soliciting
17-005
submitted one
Securus submitted
response, Securus
Ex. C.
C. InInresponse,
Jail. Ex.
County Jail.
Passaic
Passaic County
received prior to April 5,
County received
Passaic County
that Passaic
bids that
five bids
of the five
2017.

Ex. D.
Ex.

Center
County Procurement
Procurement Center
Passaic County
However,
However, the Passaic

proper
a proper
submit a
failure to submit
on its failure
based on
bid based
Securus' bid
rejected
rejected Securus'
statement.
disclosure statement.
stockholder disclosure
stockholder
40A:11-23.2(c).

N.J.S.A.
see also
also N.J.S.A.
Ibid.;
Ibid.; see

bid
the bid
reviewing the
still reviewing
is still
County is
Passaic County
Passaic

contract. Ibid.
new contract.
awarded aa new
yet awarded
not yet
has not
and has
submissions and
LEGAL ARGUMENT
Standard of Review
dismissed for
be dismissed
should be
complaint should
whether a complaint
determine whether
To determine
granted
can be
be granted
relief can
which relief
upon which
claim upon
to state
state a claim
failure to
failure
to
limited to
"inquiry is limited
court's "inquiry
4:6-2(e), a court's
to Rule
Rule 4:6-2(e),
pursuant to
pursuant
examining the legal sufficiency of the facts alleged on the face
complaint."
of the
the complaint."

Elecs.
v. Sharp Elecs.
Mart-Morristownn v.
Printing
Printing Mart-Morristow

6

the
"search[]
[] the
"search
court should
should
The court
(1989). The
746 (1989)
739, 746
N.J. 739,
116 N.J.
Corp.,
• , 116
Corp

the
whether
the
to
whether
to ascertain
ascertain
and
with liberality
liberality
in depth
and with
depth
in
omplaint
ccomplaint
an
an
even
from
even from
be gleaned
may
action
gleaned
of
may be
of action
of aa cause
cause
of
undament
ffundament
if
to
given
amend if
being
given
to amend
being
opportunity
of claim,
opportunity
statement
claim,
obscure
of
statement
bscure
o

necessary." ~
necessary."

Ibid.
Ibid.

every
every
give plaintiffs
must
must give
plaintiffs
The
court
The court

the
as true
"accept as
facts
and "accept
fact and
true.
the facts
inference ofof fact
inference
rreasonable
easonable
Super.
Super.
v. Hanna,
v.
366 N.J.
Hanna, 366
N.J.
Darakjian
complaint." Darakjian
the complaint."
in the
alleged
in
a lleged
at
116
supra,
at
Mart,
N.J.
116 N.J.
Mart,
supra,
Printing
see Printing
2004) ; see
238, 242
Div. 2004);
(App. Div.
238,
242 (App.
746.
746.
plaintiff's
supporting
facts
plaintiff's
supporting
facts
"the essential
essential
Nevertheless, "the
Nevertheless,
to
claim
to
the
for
claim
for
order
the
in order
in
presented
must
must be
be presented
of action
cause
action
of
c ause
in that
that
are insufficient
in
allegations are
insufficient
allegations
conclusory
conclusory
ssurvive;
urvive;
regard."
r egard."

193
188,
193
Super.
Super.
424 N.J.
188,
N.J.
Inc. , 424
Tech. , Inc.,
v. DRS
Scheidt v.
DRS Tech.,
Scheidt

added).
added) .
2012)
Div.
(emphasis
2012) (emphasis
App.
Div.
((App.

be
may not
be
"The motion
motion
not
may
"The

the
may
the
discovery
that
establish
discovery
may establish
that
on
based
the possibility
denied
possibility
on the
based
denied
for
requisites
for plaintiffs'
plaintiffs'
legal
the
requisites
the legal
claim; rather,
rather,
claim;
equisite
rrequisite
v.
v.
itself." Edwards
Edwards
complaint itself."
the complaint
from the
from
be apparent
must be
apparent
claim
must
c laim
Div.
196,
202 (App.
Super.
(App. Div.
196, 202
Super.
357 N.J.
N:J.
Co.,
Co. , 357
Prop. &
Cas.
& Cas.
Prudential Prop.
Prudential
2003).
2003)
.
to
the
to the
are
beholden
New Jersey
are not
Jersey
in
not beholden
courts
in New
state
courts
Although
state
Although
of
of
by virtue
virtue
courts by
federal courts
on federal
placed on
limits placed
limits
urisdictional
jjurisdictional

New
Jersey
New Jersey
requirement,
requirement,
and
controversy
case
and controversy
case
Article III's
III's
Article
that
that
requirement
the
the
preserved
requirement
preserved
nonetheless
have
nonetheless
courts
have
c ourts
a
existence ofof a
the existence
establish the
establish
must sufficiently
sufficiently
plaintiffs must
plaintiffs
7
7

context.
context.
declaratory
the declaratory
the
outside
even outside
even
controversy"
"justiciable controversy"
"justiciable
Schools
Schools
N.J.
v. N.J.
v.
O'Shea
O
'Shea

Div.
Div.
(App.
317-18.
317-18. (App.
for
for
claim
laim
c

312,
312,
Super.
Super.
N.J.
388 N.J.
Corp. , 388
Corp.,
Construction
Construction
a
for a
Thus,
Thus, for

2006) .
2006).

a
a
to
state
to state
complaint
complaint

allegations
allegations
factual
factual
include
must include
must
plaintiff
aa plaintiff
relief,.
relief,

claim.
claim.
justiciable
to
a justiciable
to a
rise
rise
giving
iving
g

y,
specifically,
More specificall
Ibid.
Ibid. More

that
that
must establish
establish
must
together,
taken
together,
, taken
allegations
allegations,
factual
he factual
tthe
plaintiff's
on
on plaintiff's
predicated
predicated
right"
of right"
of
"claim
holds aa "claim
holds
plaintiff
p
laintiff
by
by
denied
affirmatively ely denied
been affirmativ
been
have
have
which
which
rights,"
rights,"
"legal
legal
"

defendant.
defendant.

317.
at 317.
Id. at
Id.

,
self-imposed
self-imposed,
connotes
Justiciability connotes
Justiciability

on matters
matters
limitations on
jurisdictional limitations
constructed jurisdictional
-constructed
udicially
jjudiciallyreview.
review.
judicial
for judicial
for
ppropriate
appropriate
a

v.
v.
Action
Action
Citizen
Citizen
N.J.
See
See N.J.

1997) .
(App. Div.
Div. 1997).
411 (App.
402, 411
Super.
402,
Super.
N.J.
296 N.J.
Corp. , 296
Corp.,
Motel
Riviera
Riviera Motel

and
and
breach,
breach,
the duty,
duty,
the
whether
whether
into
into
inquire
to
to inquire
courts
courts
IIt
t requires
requires
and
and
determined,
determined,
identified,
identified,
judiciallybe judicially
can
can be
asserted
asserted
rright
ight
molded.
m
olded.

281 (1981).
(1981) .
87 N.J.
275, 281
N.J. 275,
Gladden , 87
v. Gladden,
v.
Gilbert
See
See Gilbert

justiciability lity
ofof justiciabi
aspects
are aspects
are
ripeness
and ripeness
and
Mootness
ootness
M

to
to
granted
is
is only
only granted
review
review
judicial
judicial
that
that
with
ensuring
with ensuring
cconcerned
oncerned
Tpke
Tpke
N.J.
See N.J.
harm. See
immediate harm.
with immediate
threatened with
plaintiffs threatened
tthose
hose plaintiffs
Trini tas
v.
v . Trinitas
(194 9) ; Betancourt
Betancourt
241 (1949);
2 3 5 , 241
N. J . 235,
Auth.
v . Parsons,
Parsons , 3 N.J.
. v.
Auth
301,
301,
Super.
Super.
415 N.J.
N.J.
Hosp.,
H
osp• , 415

v.
v.
Jackson
Div. 2010);
(App. Div.
2010) ; Jackson
311 (App.
311

2000) .
Div. 2000).
(App. Div.
231 (App.
227, 231
227,
Super.
Super.
N.J.
335 N.J.
335
Corrections,
of Corrections,
Dept. of
Dept.

as
as
treated
be treated
may be
defense
defense
ripeness
and a ripeness
and
defense
defense
mootness
Both
Both a
a mootness
.
4:6-2(e)
Rule 4:6-2(e).
under Rule
under
defense
claim" defense
aa claim"
state
to
to state
a "failure
"failure
a
Famil
Rezem Family
at 393;
393; Rezem
at
Super.
N.J.
Super.
434 N.J.
434
supra,
97, supra,
Local 97,
Teamsters Local
Teamsters

8

103
Super. 103
N.J. Super.
of Millstone,
Millstone, 423 N.J.
Borough of
v. Borough
LP v.
Associates, LP
Associates,
.
2011).
(App. Div. 2011)
POINT I
BECAUSE
DISMISSED BECAUSE
BE DISMISSED
MUST BE
COMPLAINT MUST
THE COMPLAINT
THE
"ACTUAL
AN "ACTUAL
PRESENT AN
TO PRESENT
FAILS TO
SECURUS FAILS
SECURUS
THE
THE
UNDER
UNDER
REQUIRED
RSY"SY"ASAS REQUIRED
CONTROVER
CONTROVE
ORY JUDGMENT ACT.
DECLARATORY
DECLARAT
the RCL
a declaration
declaration that
that the
Complaint, Securus seeks a
In its Complaint,
Due
and Due
Takings and
's Takings
Constitutionn's
States Constitutio
United States
the United
violates
violates the

n's
's
Constitution
NewJersey
JerseyConstitutio
the New
as the
well as
as .well
Clauses, as
Process
Process Clauses,
Securus.
as applied
to Securus.
applied to
and as
face and
its face
on its
both on
Clause, both
Takings
Takings Clause,
Compl.

TT
¶~

B.
A, B.
A,

Securus
by Securus
relief sought
sought by
such, the
the relief
As
As such,

("DJA").
Act ("DJA").
Judgment Act
Declaratory Judgment
Jersey Declaratory
New Jersey
the New
implicates the
implicates
N.J.S.A. 2A:16-50 to -62.
DJA, a
under the DJA,
relief under
declaratory relief
for declaratory
Claim for
a claim
state a
To state
establish
to establish
sufficient to
allegations sufficient
plaintiff must plead factual allegations
2A:16-61.
" N.J.S.A.
N.J:S.A. 2A:16-61.
controversy.."
"actual controversy
of an "actual
existence of
the
the existence
judgment,
enter aa declaratory
declaratory judgment,
or enter
render or
to render
refuse to
may refuse
"The court may
the
terminate the
not terminate
would not
it would
entered, it
rendered or entered,
when, if
if rendered
when,

"
proceeding."
to the
the proceeding.
rise to
giving rise
controversy giving
or controversy
uncertainty
uncertainty or
bing
ing
(circumscrib
235(circumscri
N.J. 235
supra, 33 N.J.
Parsons, supra,
also Parsons,
see also
Ibid.; see
Ibid.;
salutary
on "the
"the salutary
based on
DJA based
the DJA
providedbyby the
remedies provided
remedies
not be
may not
courts may
the courts
of the
jurisdiction of
the jurisdiction
that the
on that
ation
qualificati
qualific
Supreme
Our Supreme
controversy")). Our
actual controversy"
an actual
of an
absence of
in the absence
invoked in
invoked
requirement
" requirement
controversy"
"actual controversy
the "actual
that the
clarified that
Court has clarified
Court

9
D

functioning
functioning
opinions,
advisory
opinions,
advisory
rendering
from rendering
from
courts
precludes courts
precludes
other
other
issues
or deciding
or
deciding
issues
cases,
moot cases,
moot
deciding
deciding
abstract,
n the
iin
the abstract,
adversary
adversary
affecting
affecting
conclusively
conclusively
issues
issues
contested
contested
"concrete
han "concrete
tthan

in interest."
interest."
parties
parties in

at 240.
240.
Id. at
Id.

where
where aa
As
As a consequence,
consequence,

of an
an
of
the
the existence
establishing
establishing
facts
facts
existence
plead
to plead
fails to
plaintiff fails
plaintiff
to
to
entitled
not
entitled
plaintiff isis not
controversy,"
controversy,"thethe plaintiff
actual
"
"actual
dismissed. The
The
must bebe dismissed.
complaint must
the complaint
and the
relief, and
declaratory relief,
declaratory
of
the
of the
for the
the adjudication
remedy for
adjudication
a remedy
provide
to
to provide
designed
DJA
DJA is
is designed
has
no
been no
"where
there
has been
"where there
Likewise,
parties. Likewise,
the parties.
of the
rights of
llegal
rights
egal
.

DJA is
available.
the DJA
not available.
the
is not
right,"
right,"
claimed
of the
of
the claimed
invasion
. invasion

IIbid.
bid.

judicial
judicial
DJA to
to secure
the
DJA
invoking
secure
the
is
is invoking
Securus
Here,
Here, Securus
the Cape
in the
Cape May
interests in
purported interests
its purported
regarding
regarding its
djudication
aadjudication
legal
not have
a legal
does
does not
Securus
have a
But Securus
Contracts. But
County Contracts.
Passaic County
a
and
nd Passaic
the contract
contract
County
Passaic
County -- the
with Passaic
with
contract
contract
continued
to a
a continued
rright
ight
to
commenced.
has
that
and that
has commenced.
process
process
bidding,
and
bidding,
public
to public
to
iis
subject
s subject

is
is
a
provider
until
until
new provider
a new
effect
in effect
only in
is only
contract is
contract
The current
The
current
Securus
Securus
To the
the extent
extent
underway. To
process isis underway.
that process
and that
and
ssecured,
ecured,
is
is
contract
contract
its
extended
its
extended
because
harmed because
been harmed
has been
it has
it
cclaims
laims
to
provide
chose to
to continue
to provide
itself
continue
chose
itself
Securus
RCL, Securus
the RCL,
to the
ssubject
to
ubject
bid
to
to bid
is
is free
Securus
free
rate. Securus
cent rate.
eleven cent
the eleven
at the
services at
he services
tthe

but is
not
to pass,
or to
is not
but
pass,
contract or
contract
County
County
new
Passaic
new Passaic
ffor
the
or the
County
County
to Passaic
ICS
Passaic
ICS to
provide
to
to provide
continue
to continue
entitled to
entitled
llegally
egally
contract.
current contract.
its current
of its
expiration of
the
the expiration
aafter
fter
10

continues
County continues
May County
with Cape
Cape May
with
contract
Securus' contract
Moreover, Securus'
Moreover,

RCL. By
the RCL.
by the
unaffected by
remain unaffected
will remain
and will
2018, and
until 2018,
until
iin
effect
n effect
As
contracts. As
renewal contracts.
or renewal
new or
to new
applies to
only applies
RCL only
the RCL
terms, the
iits
ts terms,

the
the
to
charge
to charge
continue
to
to continue
entitled
entitled
legally
is
is legally
Securus
Securus
a result,
result,
a
County.
May County.
Cape May
in Cape
ICS in
for ICS
rate for
original rate
original

not
is not
The RCL is
The

rretroactiv
etroactive. e.

s
allegation
allegations
factual
plead factual
to plead
to
failed
has failed
Securus has
Because Securus
Because
County
County
to
Passaic
to the
the Passaic
with respect
respect
with
right
legal right
any legal
establishi
stablishing ng any
e
with
with
right
right
claimed
claimed
of
its
of its
invasion
an invasion
ng an
establishing
or establishi
Contract or
Contract
not
not
DJA is
the DJA
is
the
Contract,
Contract,
County
May County
Cape
Cape May
the
to the
to
rrespect
espect
dismissed.
be dismissed.
must
must be
Complaint
the Complaint
and the
and
available
a
vailable
II
POINT II
BECAUSE
DISMISSED BECAUSE
BE DISMISSED
MUST BE
COMPLAINT MUST
THE COMPLAINT
THE
ON.
FOR ADJUDICATION.
RIPE FOR
NOT RIPE
IS NOT
CLAIM IS
S' CLAIM
SECURUS'
SECURU

Generally
Ripeness Generally
A.
. Ripeness
A
as
as
such time
time
until
such
until
Complaint
the Complaint
the
dismiss
dismiss
should
should
This Court
Court
This
of
of
causes
causes
into
into
have ripened
ripened
have
that
that
issues
pled issues
and has
has pled
can and
Securus can
Securus
ction.
a
action.

the
the
requires
that
requires
that
doctrine
justiciability lity doctrine
is aa justiciabi
Ripeness is
Ripeness
is
is
case
aa case
whether
of whether
determination ion of
determinat
threshold
the threshold
make the
to
to make
court
c ourt
a premature
premature
rendering
avoid
avoid rendering
thereby
and
and thereby
review
review
judicial
for judicial
rripe
ipe for
decision.
decision.

of
Department t of
v. Departmen
n v.
Ass'n
ty Ass
Hospitali
Park
Hospitality
Nat'l Park
Nat'l

1017
2d 1017
L. Ed.
Ed. 2d
155
155 L.
2026,
Ct. 2026,
S. Ct.
123 S.
808, 123
803, 808,
U.S. 803,
538 U.S.
538
IInterior,
nterior,
two to
a twoto a
pursuant
pursuant
ripeness
ripeness
analyze
analyze
courts
Jersey courts
New Jersey
((2003).
2003) . New

11
11

pronged analysis:

hardship
the hardship
(2) the
prong; and
and (2)
fitness prong;
(1) the fitness
(1)

U.S.
of U.S.
the Office
From the
Office of
Menendez From
Robert Menendez
Recall Robert
to Recall
Comm. to
prong. Comm.
prong.
Co. v.
Trust Co.
Empire Trust
(2010); Empire
99 (2010);
79, 99
204 N.J. 79,
v. Wells,
Wells, 204
Senator v.
Senator
(1940);
411 (1940);
N.J.L. 406,
406, 411
Navigation, 124 N.J.L.
and Navigation,
Commerce and
Board of Commerce
Board
Jersey
New Jersey
Inc. v. New
Jersey, Inc.
Cent. Jersey,
North Cent.
of North
Companies of
Hovnanian
Hovnanian Companies
9-10 (App.
Environmental Protection, 379 N.J. Super. 1, 9-10
Dept. of Environmenta
Div. 2005).
Supreme
New Jersey
Jersey Supreme
the New
99, the
supra, 204 N.J. at 99,
Menendez, supra,
In Menendez,
drawing
by drawing
test by
the ripeness
ripeness test
Court analyzed the fitness prong of the
issues.
factual issues.
and factual
legal and
between legal
a distinction
distinction between
as:
Menendez as:
issue in Menendez
framed
the issue
framed the

Court
The Court
The

Uniform
the Uniform
under the
whether,
whether, under

19:27A-18,
to 19:27A-18,
19:27A-1 to
N.J.S.A. 19:27A-1
("UREL"), N.J.S.A.
Election Law ("UREL"),
Recall Election
Recall
submitted
had submitted
committee had
recall committee
the recall
that the
intention that
the notice of intention
complied
petition complied
recall petition
its recall
of its
support of
Secretary in support
with the Secretary
with
su ra, 204
Menendez, supra,
19:27A-6. Menendez,
N.J.S.A. 19:27A-6.
of N.J.S.A.
provisions of
with the provisions
with
19:27A-7(a)
N.J.S.A. 19:27A-7(a).
88; N.J.S.A.
N.J. at 88;

The Court characterized this

Division's
the Appellate
Appellate Division's
reversed the
and reversed
legal" and
"purely legal"
issue
issue as "purely
pending
grounds pending
on ripeness
ripeness grounds
complaint on
the complaint
dismiss the
decision
decision to dismiss
supra, 204
Menendez, supra,
record. Menendez,
the record.
of the
development of
factual development
further factual
statutory
of statutory
legal issues
issues of
that legal
explained that
Court explained
TheCourt
N.J. at 94. The
N.J.
issues,
to fact-based
fact-based issues,
opposed to
on, as opposed
interpretation,
regulatory interpretati
or regulatory
unlikely
review because
because they are unlikely
judicial review
are generally fit for judicial
Menendez,
facts. Menendez,
additional facts.
of additional
development of
the development
from the
to benefit from
supra, 204 N.J. at 99.
12

the
in Menendez,
in
Menendez , the
issue
legal"
issue
legal"
"purely
to
the "purely
to the
In contrast
contrast
In
fact -based:
is
is fact-based:
here
here
iissue
ssue

an
an
RCL constitutes
constitutes
the RCL
whether
whether the

ICS
ICS
other
and other
Securus and
deprives Securus
that deprives
taking that
nstitutional ional taking
unconstitut
unco
by
law by
of law
process of
due process
without.
without due
property
their property
of their
providers of
providers

a
a
recoup
to
to recoup
charge
must charge
must
providers
what providers
below what
caps below
rate
rate caps
iimposing
mposing
return.
return.
easonable
rreasonable

the
the
for
for review,
review,
be ripe
ripe
to
to be
issue
issue
this
For
For this

a
court
a court
to
allow
to allow
sufficient
sufficient
facts
facts
allege
to allege
have to
would have
Complaint would
Complaint
similarlyand
and similarlySecurus
Securus
precludes
RCL precludes
the RCL
the
whether
whether
determine
o determine
tto

investments
investments
initial
initial
their
their
recouping
from recouping
from
providers
ICS
ICS providers
ituated
ssituated
aa reasonable
reasonable
plus
plus
costs
costs
operating
operating
their
their
recovering
from recovering
nd from
aand
rreturn.
eturn.

in
Menendez ,
in Menendez,
issue
issue
legal"
legal"
"purely
the "purely
to
to the
In contrast
contrast
In

of
of
development
the development
from the
from
benefit
would
would benefit
that
that
issue
an issue
is
is an
his
tthis
facts.
facts.
dditional
additional
a

the
the
dismiss
dismiss
should
should
Court
this Court
Accordingly,
Accordingly, this

Complaint.
Complaint.
the
to the
respect to
with respect
distinguishable hable with
distinguis
also
is also
is
Menendez
enendez
M

has
made
has made
Here, Securus
Securus
analysis. Here,
ripeness analysis.
its ripeness
of its
prong of
hardship prong
hardship
in
made
made in
the showing
showing
to the
to
analogous
harm" analogous
of harm"
showing of
"sufficient showing
no "sufficient
no
at 100.
100.
at
N.J.
204 N.J.
204
supra,
supra,
Menendez,
Menendez,
Menendez.
M
enendez.

the
the
In
Menendez,
In Menendez,

ripeness
the
by invoking
the ripeness
invoking
by
that
that
observed
observed
Court
Court
Supreme
Supreme
Jersey
New Jersey

UREL
UREL
the
the
declaring
from declaring
from
abstain
to abstain
means to
doctrine asas aa means
doctrine
the
acknowledging ing the
albeit acknowledg
unconstitutional,"tional," albeit
y unconstitu
"manifestl
manifestly
"

the
Appellate
the Appellate
in the
future,
the future,
in
declaration
a declaration
such a
of such
possibility of
possibility
to
to
recall process
process
the recall
allowed the
incidentally allowed
decision incidentally
Division's decision
Division's
forward.
move
m
ove forward.

to
to
decision
decision
its
its
absent
absent
that
that
observed
observed
Court
The Court
The
13
13

be
would be
Menendez would
Senator Menendez
effect, Senator
incidental effect,
this incidental
reverse this
reverse
recall
of a recall
t of
establishmennt
oversee the establishme
to oversee
obligated to
statutorily obligated
statutorily
from his
consequentially detract from
would consequentia
committee, which would
defense
defense committee,

harm the public.
public.
and harm
ties and
responsibilities
l responsibili
congressional
congressiona
N.J. at 100.
204 N.J.
supra, 204
supra,

Menendez,

decision by the
Further,
Further, a subsequent decision

after
ional"
onal" after
unconstituti
"manifestly unconstitut
was "manifestly
process was
the process
Court that the
Court
undermine
would undermine
to proceed
proceed would
having allowed that very same process to
process.
electoral process.
the electoral
confidence in the
public confidence
public

Ibid.

Thus, the
Thus,

harm
ed harm
had demonstrat
Menendez had
demonstrated
Senator Menendez
that Senator
found that
Court found
Court

prong. Ibid.
hardship prong.
the hardship
satisfy the
to satisfy
sufficient to
sufficient
Here, Securus has failed to show that the RCL has forced it
New
ICS in New
of ICS
provision of
its provision
from its
away from
resources away
to redirect
redirect resources
to

Counties. Also,
May Counties.
Cape May
and Cape
Passaic and
of Passaic
detriment of
the detriment
to the
Jersey to
substantial
that aa substantial
showing that
facts showing
allege facts
failed to allege
has failed
Securus has
Securus
threatened in the event that this Court
interest will be threatened
public
public interest
public
the public
Rather, the
RCL. Rather,
the RCL.
invalidate the
immediately invalidate
to immediately
declines to
declines

RCL: the
the RCL:
of the
ality of
constitutionality
the constitution
upholding the
favors upholding
interest favors
interest
prices on
requiring lower prices
taxpayers by requiring
Jersey taxpayers
RCL benefits
benefits New Jersey
and
rate cap
cap and
the rate
through the
both through
ICS, both
for ICS,
contracts for
public contracts
public

the ties
ties
and strengthens
strengthens the
commissions,, and
site commissions
of site
ion of
elimination
eliminat
local
and local
their families
families and
and their
populations s and
inmate population
between inmate
between
communities by ensuring affordable means of communication.
allegations
factual allegations
Complaint omits factual
because the Complaint
Therefore, because
Therefore,
hardship
the hardship
prong or the
fitness prong
the fitness
either the
satisfy either
to satisfy
sufficient to
sufficient
14

yet
have yet
of the
the Complaint
Complaint have
alleged on the face of
the facts alleged
prong, the
prong,

to ripen into a claim upon which relief can be granted.
the Cape May County Contract
to the
Respect to
With Respect
Ripeness With
B. Ripeness
because it fails to
should be dismissed because
Complaint should
Securus' Complaint
Securus'
or the
the hardship
hardship prong
allege facts satisfying either the fitness or
with
test specifically
specifically with
ripeness test
two-pronged ripeness
Jersey's two-pronged
of
of New
New Jersey's
respect to its Cape May County Contract.

entitled to set the same rates as
contractually entitled
Securus is contractually
Securus
its contract
under its
date under
contract with
effective date
the RCL's
RCL's effective
it set prior to the
this Court
or does
does or
Court does
whether this
of whether
Regardless of
County. Regardless
Cape May County.
Cape
Plaintiff
to Plaintiff
threat posed
any threat
posed to
RCL, any
operation of the RCL,
not enjoin operation
expires
County Contract
May County
Contract expires
Cape May
the Cape
until the
would not even arise until
would
2018.
26, 2018.
March 26,
on March

Ex. A.
See Ex.
See

would
threat would
then, the
Even
the threat
Even then,

adjudication.
judicial adjudication.
for judicial
premature for
too premature
remain
remain too

the
Upon the
Upon

will have
Plaintiff will
2018, Plaintiff
Contract in 2018,
expiration of the Cape May Contract
duration allowed
the maximum
maximum duration
for the
County for
May County
provided ICS to Cape May
re-bid
must re-bid
County must
by N.J.S.A. 40A:11-4.2 and -15(8) before the County
bidding requirement.
requirement.
public bidding
the public
pursuant to the
contract pursuant
the contract
the

The

to participate
participate in
of Securus
Securus to
ability of
the ability
limits the
way limits
no way
RCL in no
proposal.
bid proposal.
submitting a bid
process by submitting
that process
that

Securus
If, as
as Securus
If,

of the rate ceiling set under the RCL
effect of
net effect
the net
contends, the
contends,
uated
similarly-situated
andsimilarly-sit
ofSecurus
Securusand
ability of
the ability
impair the
is to
is
to impair
return
reasonable return
recovering a reasonable
from recovering
providers from
ion providers
unication
telecommunicat
telecomm
present a
able to present
be able
would be
Securus would
then Securus
investments, then
their investments,
on their
15

and
and
real
the
the real
to establish
establish
to
tending
tending
allegations
allegations
factual
with factual
court with
court
that
at that
the RCL at
enforcement ofof the
by enforcement
threatened by
harm threatened
harm
iimmediate
mmediate
ttime.
ime.

factual
factual
to
to plead
plead
fails
fails
here
here
Complaint
the
the Complaint
contrast,
In contrast,
In

a
existence ofof a
the existence
establish the
sufficientto to establish
s sufficient
allegation
a
llegations
if
Even if
adjudication. Even
judicial adjudication.
for judicial
ripe for
controversy ripe
controversy
usticiable
jjusticiable
the
to
amend the
to amend
leave
leave
Plaintiff
Plaintiff
permit
to
to permit
were
were
Court
Court
his
tthis
amended
amended
in
in its
its
to plead
plead
need to
would need
Securus would
facts SeCurus
the facts
Complaint, the
Complaint,
to
come to
to come
yet to
have
have yet
to
dismiss
to dismiss
motion
survive aa motion
to survive
Complaint to
Complaint
ruition.
ffruition.

because
because
the Complaint
the
Complaint
dismiss
dismiss
should
should
Court
this Court
Therefore, this
Therefore,
that
that
rights
rights
on purported
purported
rest
rest on
therein
therein
allegations
allegations
factual
tthe
he factual
uncertain"
and
and uncertain"
contingent,
contingent,
"future,
as "future,
d as
characterized
be characterize
can
only be
an only
c
See
review. See
judicial review.
for judicial
ripe for
not ripe
are not
that are
claims that
claims
purported
and
nd purported
a
302
302
295,
295,
Super.
Super.
N.J.
376
376 N.J.
Bergen,
N. Bergen,
of N.
v. Twp.
Twp. of
Co. v.
Co.
Realty
Realty
ndep.
IIndep.
DOI,
v. DOI,
Ass n v.
Ass'n
Hospitality
Park Hospitality
Nat'l
Park
Nat'l
also
see also
2005) ; see
2005);
Div.
App. Div.
((App.
(2003) .
1017 (2003).
2d 1017
L. Ed.
Ed. 2d
155
155 L.
2026,
Ct. 2026,
S. Ct.
808, 123
123 S.
803, 808,
538
5
U.S. 803,
38 U.S.

POINT III
THE PASSAIC
ON THE
PASSAIC
BASED ON
CLAIMS BASED
PLAINTIFF'S CLAIMS
PLAINTIFF'S
MOOT
DISMISSED AS MOOT
SHOULD BE DISMISSED
CONTRACT SHOULD
COUNTY CONTRACT
COUNTY
CONTRACT
CONTRACT
THE
THE
ON
ON
RE-BID
RE-BID
HAS
BECAUSE SECURUS
FOR REASONS
REASONS
REJECTED FOR
WASREJECTED
BID WAS
BUT ITS
ITS BID
BUT
RCL.
THE
RCL.
THE
TO
TO
ELATED
UNLRELATED
UNLR
A

on
on
power
power
judicial
judicial
to exercise
exercise
to
decline
decline
should
should
court
court

an
an
allege
allege
sufficiently
to sufficiently
fails to
f fails
plaintif
grounds where
where plaintiff
mootness grounds
mootness
harm.
of harm.
threat of
threat
mmediate
iimmediate
.
2014).
Div. 2014)
(App. Div.
219 (App.
203, 219
203,

Super.
Super.
436
N.J.
436 N.J.
Nugiel,
v. Nugiel,
Comando v.
Comando
original
the original
where the
moot where
is
is moot
issue
An
An issue

16
16

sought,
the
sought,
and
the decision
decision
result,
as aa result,
and as
issue has
been resolved,
resolved,
has been
issue
on
effect
existing
o~ the
no
effect
the existing
practical
can have
no practical
can
have
when rendered,
when
rendered,
Ibid.
Ibid.
controversy.
c
ontroversy.
to
the
that
to
contends
RCL operates
operates
that
the RCL
Securus
contends
Complaint,
Securus
Complaint,
its
n its
IIn
under
investments
under
and
ongoing
initial
initial
its
and ongoing
investments
its
confiscate
effectively
confiscate
ffectively
e
County
that
and that
May and
with
and Passaic
County and
Passaic
Cape May
contracts
with Cape
contracts
iits
existing
ts existing
because
contracts
because
renew" these
to
to renew"
contracts
these
unable
even be
be unable
Securus "may
"may even
Securus
must
Securus
that
charge
the
must charge
paying
that
rates
Securus
the rates
paying
[RCL]
"[t]he
[RCL] forbids
forbids
[t]he
"
¶
investments." Compl.
Compl. ¶
ongoing investments."
and ongoing
upfront and
its upfront
on its
even on
even
break
o break
tto

25.
25.

at the
directed at
the
allegations
several
allegations
several
directed
Securus raises
raises
Securus

to
to
provide
to provide
situated
to Securus
Securus
situated
similarly
similarly
of vendors
of
vendors
iinability
nability
without
without
the RCL's
rate structure
RCL's rate
structure
of the
of
the
confines
the confines
within
ICS
I CS within
22
¶ 22
loss. Id.
at ¶
at aa loss.
Id. at
operating at
operating

effect
effect
RCL can
can have
have no
the RCL
no practical
practical
the
enjoining
enjoining
A decision
decision
A
Securus
Securus
County
with Passaic
because
County because
with
Passaic
contract
current
contract
on Securus'
current
Securus'
on a
a
RCL on
the RCL
with the
with
consistent
rate
consistent
a rate
a
to charge
charge
to
has agreed
has
agreed
in
process
bidding
Passaic
in Passaic
public
bidding
public
until the
basis, until
process
the
basis,
emporary
ttemporary
the
of
the
whether
of whether
imminent. Regardless
which isis imminent.
Regardless
concludes, which
County concludes,
County
aa reasonable
from
reasonable
from recovering
Securus
recovering
Securus
to
prevent
to prevent
operates
RCL operates
issued
County
issued
Passaic
County already
investments,
already
upfront
Passaic
investments,
on
return
upfront
on its
r eturn
its
proposals
proposals
one of
of the
the five
five
submitted
one
already
submitted
already
RFP,
RFP, Securus
Securus
iits
ts
rejected
already
County
rejected
and Passaic
already
County
Passaic
thereto, and
thereto,
rresponding
esponding
Ex.
considerations. Ex.
rate considerations.
unrelated toto rate
reasons unrelated
for reasons
bid for
Securus's bid
Securus's

a
to
a
failure
submit
to submit
on Securus'
failure
Securus'
on
based
bid
bid based
Securus'
Securus'
D
(rejecting
D (rejecting
17
7
1

by
N.J.S.A.
as
by N.J.S.A.
as required
statement
statement
required
disclosure
disclosure
stockholder
proper stockholder
proper
)
40A:11-23.2(c)).
4
0A:11 -23.2(c)

alleges
alleges
the Complaint
insofar as
as the
insofar
Complaint
Therefore,
Therefore,

with
contract
with
existing
existing
both
contract
both Securus'
Securus'
the
impairs
that
RCL impairs
t hat
the RCL
to
ability
that
to renew
renew that
as
ability
Securus'
as Securus'
as well
well
County, as
Passaic County,
Passaic
is
moot.
is moot.
the issue
the
issue
contract,
ontract,
c

"the
to
"the
As
As applied
to Securus,
applied
Securus,

to
interference
to
judicial
judicial
litigation,"
interference
the
the litigation,"
who
initiated
part[y]
who initiated
part
[y)
"can
"can
County
Passaic
Contract
the Passaic
to
to the
County Contract
application
the
RCL's application
enjoin
e
the RCL's
njoin
See
controversy." See
existing
existing
on
the
on the
controversy."
effect
effect
practical
no
have
h ave
no practical

Comando,
Comando,

Super.
Super.
436 N.J.
supra,
N.J.
436
supra,

DeVesa
DeVesa
(quoting
at 219
219 (quoting
at

v.
v.

Dorsey
Dorsey,
,

J.,
).
J. , concurring)).
concurring)
(Pollock,
(1993) (Pollock,
420,
428 (1993)
134 N.J.
420, 428
134
N.J.

Passaic
Passaic

harm
the
harm
reveal that
that
the threatened
threatened
.reveal
RFP results
results
County's
RFP
County's

has
relief
already
relief
has already
for
declaratory
for declaratory
request
Securus'
request
underlying
Securus'
underlying
to
unrelated
the
wholly
to the
wholly
of
statute
unrelated
a statute
of a
the hands
at the
hands
materialized
at
m
aterialized
rise to
giving rise
the
statute giving
to the
statute
unconstitutional
unconstitutional
RCL,
allegedly
RCL, the
the allegedly
Complaint.
Cs~mplaint.
in
Plaintiff's
in Plaintiff's
allegations
a llegations
this
this
to
RFP 17-005
17-005 renders
to RFP
of
renders
of finality
finality
the lack
lack
Although the
Although
of
rejection
of
County's
rejection
Passaic
County's
review,
Passaic
review,
for
judicial
unfit
for judicial
matter
atter
m
unfit
its
not for
its
Complaint
for
of the
the
not
Complaint
dismissal of
dismissal
bid warrants
warrants
Securus'
bid
Securus'
of
moot
of moot
assertion
its
for its
assertion
but for
claims but
assertion ofof claims
assertion
premature
premature
than
other
rate
other
than rate
on grounds
grounds
bid
bid on
Securus'
Securus'
By
rejecting
claims.
Byrejecting
c
laims.
facts
set of
of facts
one set
the one
eliminated the
County eliminated
Passaic County
Passaic
considerations,
c onsiderations,

a
to state
claim
relied
a claim
to
state
relied
eventually
may
have eventually
may have
on which
Securus
which Securus
on
granted:
been granted:
have
could
have been
relief
could
upon
relief
which
upon which

County
Passaic
County
Passaic

to
Securus
to
to RFP-17-005
to Securus
pursuant
RFP-17-005
pursuant
contract
the
awarded
contract
renewal
the renewal
a
warded
18

bidder.
bidder.
successful
as the
the successful
as

of
of
set
set
no remaining
is
remaining
is no
there
Thus, there
Thus,

matter
matter
in
in this
this
proceedings
proceedings
further
further
would
warrant
that
would warrant
that
ffacts
acts

future.
foreseeable future.
the foreseeable
or in
now or
in the
eeither
ither
as
moot
be dismissed
as moot
should be
should
dismissed
Complaint
the Complaint
Therefore, the
Therefore,
of
of
threat
threat
an immediate
establish
an
immediate
establish
neither
can neither
Securus can
because Securus
because

an
nor
nor an
May County
Contract
County Contract
Cape
Cape May
its
under
under its
interests
interests
harm to
its
harm
to its
its
under
its
under
interest
interest
any purported
purported
harm to
of harm
to any
threat of
threat
iimmediate
mmediate
Contract.
Passaic
County Contract.
Passaic County

CONCLUSION
CONCLUSION

request
request
respectfully
respectfully
Defendants
Defendants
reasons,
reasons,
foregoing
For the
the foregoing
For
Complaint.
the Complaint.
of the
dismissal of
dismissal

submitted,
Respectfully submitted,
Respectfully
PORRINO
S. PORRINO
CHRISTOPHER S.
CHRISTOPHER
NEW JERSEY
OF NEW
NEY GENERAL
GENERAL OF
ATTORNEY
ATTOR
Defendants,
for Defendants,
Attorney for
Attorney
of
Governor
NJ
of NJ
Governor
Christie,
Christie,
her
Christopher
Christop
Porrino,
S. Porrino,
Christopher S.
Christopher
NJ
of NJ
General of
Attorney
Attorney General
of
of the
the
Commissioner
Lanigan,
Commissioner
Gary M. Lanigan,
Gary
Corrections
of Corrections
Dept. of
NJ
NJ Dept.
the
of
Commissioner
of the
Connolly,
Commissioner
Elizabeth Connolly,
Elizabeth
of Human Services
Services
Dept. of
NJ Dept.
NJ

By
By:
>

Dated:
Dated:

570 7

G~/~
avAlif
Dyke
Van Dyke
Chanel
Chanel Van
General
Attorney General
Deputy
Deputy Attorney
165022015
ID
No.
No.
ID
Atty
165022015
Atty

19
19