Town of Harrison Bd. of Educ. v. Netchert
| Decision Date | 20 October 2014 |
| Citation | 439 N.J.Super. 164,106 A.3d 1273 |
| Court | New Jersey Superior Court |
| Parties | TOWN OF HARRISON BOARD OF EDUCATION, Plaintiff, v. Barbara NETCHERT, Hudson County Clerk, Defendant, Borough of East Newark, Defendant–Intervenor. |
439 N.J.Super. 164
106 A.3d 1273
TOWN OF HARRISON BOARD OF EDUCATION, Plaintiff
v.
Barbara NETCHERT, Hudson County Clerk, Defendant
Borough of East Newark, Defendant–Intervenor.
Superior Court of New Jersey, Law Division, Hudson County.
Decided Oct. 20, 2014.
Approved for Publication Jan. 22, 2015.
Richard E. Shapiro, Princeton, for plaintiff (Richard E. Shapiro, LLC, attorneys).
Mark E. Morchel, Deputy County Counsel for defendant (Donato J. Battista, Hudson County Counsel, attorney).
Neil D. Marotta, Edgewater, and Michael A. D'Aquanni, Springfield, for defendant-intervenor (Law Offices of Marotta & Garvey and Roth D'Aquanni, LLC, attorneys).
Opinion
BARISO, A.J.S.C.
This case presents an interesting conundrum: whether a referendum question that plaintiff concedes has no actual legal effect on the relationship between the parties nonetheless should be barred. Plaintiff Town of Harrison Board of Education (“Harrison BOE”) filed a verified complaint in lieu of prerogative writs seeking an order restraining defendant Barbara Netchert (“Netchert”), in her capacity as Hudson County Clerk, from printing a nonbinding referendum question, submitted by the Borough of East Newark's mayor and governing body (“East Newark”), on the ballot for the general election in
November 2014. The central issue involves the legislative division of power at the municipal level between the local governing body and the board of education.
The parties have filed competing motions for summary judgment. For the reasons that follow, this court holds that the
nonbinding referendum question is proper, but that the proposed interpretive statement must be stricken.
I.
The essential facts are not in dispute; they are taken from the Harrison BOE's verified complaint and East Newark's statement of undisputed material facts submitted with its motion.
For over 100 years, the Borough of East Newark Board of Education (“East Newark BOE”), which has no high school, has been in a sending-receiving relationship with the Harrison BOE. This agreement is authorized by the education code, N.J.S.A. 18A:38–11, which allows the board of education of a district containing no high school to designate another district for its high school students to attend. The Harrison–East Newark send-receive relationship has allowed high school students from the East Newark School District to attend Harrison High School. Neither the East Newark BOE nor plaintiff has any writing from the New Jersey Department of Education approving the send-receive agreement.
In the past couple of years, the East Newark BOE has raised with the Harrison BOE the issue of potentially terminating the sending-receiving relationship for East Newark's high school students. The Harrison BOE has refused to do so unless the East Newark BOE follows the legally required procedure under N.J.S.A. 18A:38–13 for terminating the relationship. That statute requires that the East Newark BOE submit an application and feasibility study to the Commissioner of Education for approval.
In the 2012–13 school year, the East Newark BOE paid the Harrison BOE $14,764 per student who attended Harrison High School. The following school year, 2013–14, the tuition increased to $16,300 per student. In or around December 2013, the East Newark BOE adopted a resolution to pursue an alternative to the sending-receiving arrangement with plaintiff.
On May 14, 2014, the East Newark Mayor and Borough Council, at a public meeting, approved a resolution authorizing the County Clerk to place the following public question on the general election ballot for the November 4, 2014, election as a non-binding referendum for the voters' consideration: “Should East Newark High School students be sent to Kearny High School instead of Harrison High School?”
On May 29, 2014, a letter was sent from the East Newark Borough Clerk to the Hudson County Clerk, requesting that the nonbinding referendum be placed on the ballot for the November 2014 election.
On June 23, 2014, in response to a request from the County Clerk, the Acting Borough Clerk for the Borough of East Newark submitted an interpretive statement relating to the nonbinding referendum. The statement read:
Currently the East Newark High School students attend Harrison High School in accordance with a send/receive relationship, from the Borough of East Newark to Harrison High School. It is the desire of the Mayor and Borough Council of the Borough of East Newark to obtain
a statement of the voters of the borough if in fact this current relationship with Harrison High School should be terminated and the East Newark students be sent to Kearny High School?
The Harrison BOE asserts they first became officially aware of the submission of the nonbinding referendum on September 11, 2014, when the Board received a written copy of the question and interpretive statement from the Hudson County Clerk's Office. The Harrison BOE states that neither the Borough of East Newark nor the East Newark BOE provided it with the May 14, 2014, resolution, the May 29, 2014, request to the County Clerk to place the question on the ballot, or the interpretive statement transmitted on June 23, 2014.
By letter dated September 12, 2014, the Harrison BOE's attorney requested that the Hudson County Clerk immediately reject East Newark's request to place the “legally impermissible” question on the ballot and/or to strike the proposed question from the ballot.
On September 15, 2014, the Harrison BOE received a response from a deputy counsel in the Office of the County Counsel for Hudson County, that the County Clerk would not pass judgment on the substantive nature of the referendum question or the legality of the submitted question. The letter also stated that the Clerk would give her instructions to the printer to commence printing the ballots.
On September 18, 2014, plaintiff filed this action by an order to show cause and verified complaint, seeking a preliminary injunction preventing Netchert, in her official capacity as Hudson County Clerk, from placing the proposed question on the ballot for the general election on November 4, 2014, or, if the ballot had already been printed, to remove the proposed question.
The next day, on September 19, 2014, this court (i) entered an order setting an initial return date of September 24, 2014, (ii) granted plaintiff's request to temporarily prevent Netchert from placing the proposed question on the ballot, and (iii) denied plaintiff's request that Netchert remove the question from the ballot in the event that the ballot was already printed.
A hearing was held on September 24, 2014, the return date of the order to show cause. As a result, (1) the Borough of East Newark's motion to intervene was granted; (2) plaintiff's application for preliminary injunctive relief was denied; and (3) East Newark's motion to dismiss the complaint for failure to state a claim also was denied. The court then converted East Newark's motion to dismiss into a motion for summary judgment, with a return date set for October 17, 2014, so that the parties could engage in limited discovery and more fully brief the issues involved in this case.
East Newark now moves for summary judgment dismissing the Harrison BOE's complaint. The Harrison BOE has cross-moved for summary judgment seeking removal of the referendum question from the ballot for the November 4, 2014, general election.
II.
East Newark raises the following arguments: (1) plaintiff's complaint should be dismissed because the Harrison BOE has not demonstrated that the nonbinding referendum is improper or beyond the scope of the Borough's authority under N.J.S.A. 19:37–1 ; (2) plaintiff will not be harmed by
the nonbinding referendum; (3) plaintiff has not shown that the Borough acted in an arbitrary, capricious, or unreasonable manner, as required for actions in lieu of prerogative writs, seeking to prevent a municipal entity from taking a specific action; (4) plaintiff's complaint is time-barred by Rule 4:69–6(a) because it is brought later than forty-five days after the accrual of the claim; and, (5) plaintiff's complaint should be dismissed for lack of standing.
The Harrison BOE responds to each of East Newark's arguments and asserts that, because the Mayor and Borough Council of East Newark have no jurisdiction to act regarding the sending-receiving relationship, East Newark has no statutory authority under N.J.S.A. 19:37–1 to place the referendum question on the ballot. Additionally, the Harrison BOE now attempts to submit an amended verified complaint, alleging that the...
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