45 Years Since Donadio v. Cunningham

In the federal system, Justice Brandeis’ concurrence in Ashwander v. TVA, 297 U.S. 288 (1936), has been the source most often cited for the principle that courts will avoid reaching constitutional issues when cases can be decided on other grounds.  That concurrence catalogued a series of prior statements by the Court or individual Justices that stated or elaborated on that idea.

In New Jersey, a case most often cited for the principle of constitutional avoidance is Donadio v. Cunningham, 58 N.J. 309 (1971), which was decided 45 years ago today.  That was a municipal land use case that resulted in a unanimous opinion by Justice Hall.  The issue revolved around the issuance of a building permit for a McDonald’s restaurant and whether the issuance of that permit violated the zoning ordinance or was vitiated by procedural irregularities. McDonald’s won approval of the building permit.

During the course of the case, a 1970 amendment to the zoning ordinance was adopted.  That amendment made it unlawful for patrons to consume food in the McDonald’s parking lot.  In the Appellate Division, McDonald’s sought a declaratory judgment that the 1970 amendment was invalid, which Justice Hall characterized as “an advance adjudication that that would protect its actual operation against any future claim of zoning ordinance violation if patrons do consume food on the premises outside the building.”  The validity of that 1970 amendment had not been litigated below.  Nonetheless, the Appellate Division found the amendment valid.

Justice Hall found the issue too abstract to be the subject of a declaratory judgment.  “In addition, a court should not reach and determine a constitutional issue unless absolutely imperative in the disposition of the litigation.  Ahto v. Weaver, 39 N.J. 418, 428 (1963).  Here, the initial and principal issue of the litigation was the validity of the building permit as against claims of vitiating procedural irregularities and violation of the zoning ordinance.”  The question of the validity of the 1970 ordinance would arise only if patrons ate food in the parking lot, and whether that would happen was “unanswerable” at that time.  Thus, the Appellate Division should not have reached the constitutional question.

In context, the statement about avoiding constitutional issues, though plainly correct, may be seen as dictum, surrounded as it was (both before and after) by the ruling that it was premature to decide what was then a purely abstract issue.  Nonetheless, Donadio stands as a leading case for the principle of constitutional avoidance, and it begins its forty-sixth year today.