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August 1, 2014

Re: Important New Jersey Supreme Court Decision on the Optional Municipal Charter Law and New Jersey Civil Rights Act

Dear Mayor,

We would like you to be aware of a very important legal decision handed down by the New Jersey Supreme Court yesterday. The decision in Tumpson v. Farina clarifies provisions of the Optional Municipal Charter Law (Faulkner Act) that deal with petitions for referendum and greatly expands the ability of plaintiffs to recover attorneys’ fees under the New Jersey Civil Rights Act. Please share this notice with your municipal attorney and discuss its impact on your municipality with them.

The facts of the case are as follows. Plaintiffs petitioned a Faulkner Act municipality for a referendum on an ordinance pursuant to N.J.S.A. 40:69A-185. The Faulkner Act requires that, in order for such a petition to be valid, it must contain signatures of qualified voters number at least 15% of the votes cast in the last election for members of the General Assembly. The petition which was submitted was not facially valid and the municipal clerk refused to file it. Petitioners filed an action in lieu of prerogative writs to compel the clerk to file the petition and ultimately brought an action under the New Jersey Civil Rights Act to recover their attorneys’ fees.

The Faulkner Act

The Supreme Court determined in this case that the municipal clerk, by refusing to file a facially invalid petition, violated the Faulkner Act. The court focused on N.J.S.A.  40:69A-185 which states, that if within twenty days of an ordinance’s passage:

 …a petition protesting the passage of such ordinance shall be filed with the municipal clerk and if the petition signed by a number of the legal voters of the municipality equal in number to at least 15% of the total votes cast in the municipality at the last election at which member of the General Assembly were elected, the ordinance shall be suspended from taking effect until the proceedings are had as herein provided.

The Court focused on the “shall” language in this section, interpreting it as a requirement that clerks file these petitions. Therefore, going forward, all municipal clerks in Faulkner Act municipalities must file any petition for referendum presented to it, even if a petition for referendum is facially invalid. The effect of “filing” a petition is important.

Within twenty days of the petition being “filed” the municipal clerk must verify that the petition itself conforms to the Faulkner Act. N.J.S.A. 40:69A-187.  If the petition is insufficient, the clerk must then notify two members of the “Committee of Petitioners” of that fact. Id. Upon being notified that their petition is invalid, petitioners have an extra ten days to correct any deficiencies found in the petition document. N.J.S.A. 40:69A-188. 
In sum, the decision in this case takes away the ability of a clerk to reject a facially invalid petition and therefore give petitioners more time to amend and file a valid petition.

The New Jersey Civil Rights Act

The Court’s interpretation of the New Jersey Civil Rights Act is very important for all types of government in New Jersey. Unfortunately, it increases the liability of municipalities, counties, school districts and the state immensely.

The Court determined that the Clerk’s violation of the Faulkner Act, in effect, deprived them of their “substantive right” to petition for a referendum under the Faulkner Act and therefore also violated the New Jersey Civil Rights Act. Consequently, the municipality is required to pay the plaintiff’s attorneys’ fees. N.J.S.A. 10:6-2(c) & (f). The test the Court used to determine a “substantive right” is described below.

The Court adopted its analysis from federal court decisions on the federal Civil Rights Act (42 U.S.C. 1983). In particular the Court adopted the Blessing test to determine what a “substantive right” is. Substantive rights have to do with a benefit granted by law. To determine whether a statute creates a substantive right, the factors the Court used are: 1) whether the plaintiff is an intended beneficiary of the statute; 2) whether the plaintiff’s asserted interests are not so vague and amorphous as to be beyond the competence of the judiciary to enforce; and 3) whether the statute imposed a binding obligation (on the government unit). Blessing v. Freestone, 520 U.S. 329, 329 (U.S. 1997). However, even if the plaintiff can demonstrate that their substantive rights were violated, the government entity can defeat the presumption that the New Jersey Civil Rights Act was meant to vindicate that substantive right by demonstrating that the legislature, when it created the right, did not intend the New Jersey Civil Rights Act to be the remedy. City of Rancho Palos Verdes v. Mark J. Abrams, 544 U.S. 113, 120 (2005).

The Court determined that under these concepts, the Faulkner Act created a substantive right for citizens in Faulkner Act municipalities to petition for referendum.  More importantly, however, is the adoption of a broad interpretation of the New Jersey Civil Rights Act to include the protection of substantive rights similar to the Federal Civil Rights Act. It is unclear how New Jersey courts will apply this decision to suits against municipalities. What is clear, however, is that this decision subjects municipalities to greater liability than what they were subject to previously.

A copy of the decision can be found here: www.njslom.org/documents/A131413TumpsonvFarina.pdf

Please share this notice with your municipal attorney and discuss its impact on your municipality with them. If you have any questions please contact Ed Purcell Esq. at (609) 695-3481 x. 137 or epurcell@njslom.org.

 

Very Truly Yours,

William. G. Dressel, Jr.
Executive Director

 

 

 

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