Kumar v. Piscataway Twp. Council
| Docket Number | DOCKET NO. A-0227-21 |
| Decision Date | 23 August 2022 |
| Citation | 473 N.J.Super. 463,281 A.3d 1015 |
| Parties | Ashish KUMAR, Michael Diaferia, Jeffrey Redrup, Ozzy Guzman, and Michael Clare ("EMS Committee of Petitioners"), Plaintiffs-Respondents/Cross-Appellants, and Kamuela Tillman, Mindy Goldstein, Juliet Pastras, Laura Leibowitz, and Staci Berger ("Tape Committee of Petitioner"), and Piscataway Progressive Democratic Organization, Plaintiffs-Respondents/Cross-Appellants, v. PISCATAWAY TOWNSHIP COUNCIL, Defendant-Appellant/Cross-Respondent, and Nancy Pinkin, in her capacity as Middlesex County Clerk, and Melissa Seader, in her capacity as Piscataway Municipal Clerk, Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
Richard J. Mirra, New Brunswick, argued the cause for appellant/cross-respondent (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Richard J. Mirra, of counsel and on the briefs).
Renee Steinhagen argued the cause for respondents/cross-appellants (New Jersey Appleseed Public Interest Law Center, Inc., attorneys; Renee Steinhagen, on the brief).
Before Judges Currier, DeAlmeida, and Smith (Judge Smith dissenting).
The opinion of the court was delivered by
CURRIER, J.A.D.
In this matter, we consider whether a municipality may approve a resolution to place non-binding public opinion questions before the electorate when initiative petitions concerning the identical issues are on the same ballot. We conclude the municipality was not authorized under N.J.S.A. 19:37-1 to pass the resolutions regarding the public opinion questions because the electorate was considering the same issues on the ballot in their vote on the initiative questions. Therefore, we affirm the trial court's order which found the resolutions were invalid.
We also consider the trial court's order that denied plaintiffs' application for an award of attorney's fees under the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. Because defendants' actions of passing the unauthorized resolutions deprived plaintiffs of their substantive right to initiative, we reverse the court's order denying plaintiffs a counsel fee award.
In July 2021, the EMS Committee of Petitioners filed the "Improving Township EMS Services Initiative Petition" with the Piscataway Township (Township) municipal clerk. The petition was a proposed draft ordinance addressing the lack of a unified emergency medical services system in the Township by creating a Division of Emergency Medical Services to coordinate services. A prior report, commissioned by the Township in 2012, had concluded there was no unified system in the municipality and the current structure was not "delivering consistent services at adequate levels to give [Piscataway residents] a level of EMS response set out in industry standards." The petition included both a question to be placed on the November 2021 general election ballot and an interpretative statement. The question asked voters to determine whether a Division of Emergency Medical Services should be established.
A second group––the TAPE Committee of Petitioners––filed the "Transparency, Access and Public Engagement Initiative Petition" with the clerk. This petition was a proposed draft ordinance that would require the Township to record, broadcast, and/or stream the public portions of the Council, Planning and Zoning Board meetings on the Township's public access channel.2 It included both a question to be placed on the November 2021 general election ballot and an interpretative statement.
During the August 10, 2021 Township Council meeting, the Township clerk, in accordance with N.J.S.A. 40:69A-187, filed certifications of sufficiency for both the EMS and TAPE Committees' petitions. In addition, as required under N.J.S.A. 40:69A-190, the proposed ordinances were placed on the agenda for a first reading and public hearing. The Council did not address or discuss the petitions or the interpretive statements and, it did not propose any amendments to the petitions. In fact, the Council did not take any action as to either petition.
Later, in the same meeting, the Council passed two resolutions on its consent agenda regarding public questions to be included on the November 2021 general election ballot. Resolution #21-306 authorized a public question that read, "Should the Township of Piscataway create a new Division of Emergency Medical Services when the cost of doing so is estimated to increase Piscataway property taxes by approximately $643,683.27 or will result in a reduction in current services to Piscataway residents."
Resolution #21-307 authorized a public question that read, "Should the Township of Piscataway broadcast its Township Council, Planning Board and Zoning Board meetings on PCTV and online when the cost of doing so is estimated to increase Piscataway property taxes by approximately $575,100.63 or will result in a reduction in current services to Piscataway residents." After the meeting, the Township provided plaintiffs with copies of the resolutions and the estimate of costs after plaintiffs requested the documents under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13.
Pursuant to N.J.S.A. 40:69A-191, after the passage of twenty days and lack of action by the Council on the petitions, the Township clerk submitted the petitions and interpretative statements to the Middlesex County Clerk to be placed on the November 2021 general election ballot. The non-binding public questions were also submitted for the same ballot.
Plaintiffs further alleged defendants violated N.J.S.A. 40:69A-184 to -204 because the Council failed "to perform its duty to adopt in substantially the same form, or formally reject, [p]laintiffs' proposed ordinances ... and instead, ... approve[d] two resolutions placing non-binding referenda on the ballot ...." Lastly, plaintiffs contended defendants' actions violated the CRA, entitling them to an award of attorney's fees and costs.
After hearing the parties' arguments, the court issued a lengthy oral decision. The court found the resolutions and the accompanying non-binding public questions presented "the same or similar ... ‘question or policy’ presented by the plaintiffs' petitions and initiated ordinances." Therefore, the Township Council had no authority to pass the resolutions and the non-binding public questions were "void ab initio as a matter of law."
The court noted the Council considered the initiatives and passed the resolutions at the same meeting with the intention of placing all four items on the general election ballot. The court found this conduct was "designed to scare the electorate against the binding initiative effort," and that the Council's resolutions "were conceived, designed, and adopted as a pretext and a subterfuge to sabotage and ultimately defeat the plaintiffs' petitions." The court stated it was up to the voters to decide, without improper influence by the Council, whether the proposed ordinances should become law. It also noted that the Township could submit a proposition for the repeal or amendment of the ordinances approved by the voters.
In turning to plaintiffs' application for counsel fees under the CRA, the court noted that "the denial of the right of initiative ... [would] constitute a violation of the New Jersey Civil Rights Act, and thus would warrant an award of attorney's fees, under N.J.S.A. 10:6-2(c)." However, the court found that plaintiffs "were not denied their right of petition" because "their petitions and the proposed ... ordinances were certified, and were transmitted ... to the County Clerk." Therefore, plaintiffs' "rights were and are preserved and protected ... by the initiated ordinances ... as well as [the] injunctive relief ... granted by ... the [c]ourt in this action."
On appeal, defendants contend the trial court erred in enjoining defendants from placing the non-binding public questions on the ballot. In a cross-appeal, plaintiffs assert the court erred in denying their request for counsel fees under the CRA.
Our review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) ().
In our review of the issues, we initially considered whether the matter was moot as the November 2021 election took place and the voters passed both ordinances.3 However, because plaintiffs still contend they are entitled to attorney's fees as the prevailing party on their civil rights claim, the matter is not moot. In order to determine whether plaintiffs were a prevailing party, we must find the right to initiative is a substantive right guaranteed by the Faulkner Act, N.J.S.A. 40:69A-1 to -210, and that the Township deprived plaintiffs of that right. Therefore, we must consider both issues. See Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311, 1 A.3d 823 (App. Div. 2010) ().
We begin then with a discussion of the applicable statutes. The Optional Municipal Charter Law, commonly known as the Faulkner Act, "was adopted in order to encourage public participation in municipal affairs in the face of normal apathy and lethargy in such matters." Sparta v. Spillane, 125 N.J. Super. 519, 523, 312 A.2d 154 (App. Div. 1973). The initiative provision should be ...
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