To appeal or not to appeal on an ill-conceived lawsuit– that’s a question that the Mayor has faced several times now and, in each case, his ill-informed decision coupled with an enabling attorney has cost you, the taxpayer, more money.
The question the Mayor faced wasn’t simply to appeal or not to appeal; it was much more complicated than that. It involves matters such as:
What is the basis for the appeal?
What standards will the Court apply?
What is the likelihood of success?
What are the procedures for filing?
When are the deadlines for filing?
Is it appropriate to file an appeal on a decision that is not yet final?
If the plaintiff and his attorney do not carefully consider these individual questions, then the basic question simply becomes “Do I choose to waste taxpayers’ money or not to waste taxpayers’ money?” The answer to that question should always be “not to waste taxpayers’ money” but that is not McKay’s style.
**Please keep in mind as you read the following, that this is the work of the attorney that McKay wants to be the township’s attorney. At a higher hourly rate than our current attorney.**
Here’s the scoop: As McKay explained at the February council meeting, he felt replacing the Township’s current attorney was of such urgency that he requested “emergent relief” from the Court. That would allow him to do this immediately without the advice and consent of council. (Such relief is typically issued in the form of an injunction or restraining order.) When the court ruled at the initial oral arguments that the law was well settled and he could not do this, the plaintiff challenged the Court’s finding. In a subsequent written opinion, the Court noted:
Even though the Court has previously ruled on this issue, the Plaintiff appears to challenge the Court’s ruling simply by raising the issue again. The Plaintiff has not filed a Motion for Reconsideration of the issue pursuant to R. 4:49-2, which would be the appropriate vehicle for the Plaintiff to proceed. Notwithstanding the Plaintiff’s misuse or misapplication of the applicable rule, the Court will address the issue again in this opinion in order to complete the record.
So, McKay’s initial request for relief was denied on well-established legal grounds and his initial challenge failed to follow proper procedures.
Despite the Court’s strongly-worded ruling, McKay is still is trying to convince the Court to allow him to hire his personal attorney as the Township attorney without the advice and consent of Council.
McKay and his attorney filed a Notice of Appeal on the decision for the temporary restraining order. The Court questioned whether the Notice of Appeal was proper since it involved a ruling by a trial court that was made before all claims are resolved. That type of appeal is called an interlocutory appeal. They are disfavored by the courts and are rarely given. And, McKay and his attorney did not follow the proper procedures for an interlocutory appeal.
Further, interlocutory appeals must be filed within 20 days of the decision. The decision was given on 3/11/2016. McKay’s Notice of Appeal was filed on 4/22/2016 – well after the deadline.
The Appellate Division sent a letter to all parties involved, telling them of the appeal and informing McKay and his attorney that their appeal was deficient for a variety of reasons. So, what did McKay and his attorney do? They re-filed what basically amounted to the same appeal on 5/2/2016.
Unfortunately, even though the appeal failed to meet deadlines and follow procedural requirements, all the defending attorneys had to respond, and the cost of the responses falls to you, dear taxpayer.
On May 16, McKay withdrew his incorrect appeal. So all that work you paid for was for nothing after all! Further, the Mayor has made several attempts to get the taxpayers to pay his attorney’s fees.
Sadly, the moral of the story is that McKay just can’t help himself in his ill-guided effort to be crowned King of Lopatcong (paraphrasing how the Court characterized his lawsuit), even when it comes to wasting your hard-earned money!