Redd v. Bowman

• Decision Date: 11 August 2015
• Docket Number: A-71-13, A-72-13, A-73 September Term 2013, 073567
• Citation: 121 A.3d 341,223 N.J. 87
• Parties: Honorable Dana L. REDD, Camden City Mayor, and Honorable Francisco Moran, Camden City Council President, Plaintiffs–Appellants and Cross–Respondents, v. Vance BOWMAN, Larry Gilliams, Eulisis Delgado, Mary I. Cortes, and Robert Davis, individually and collectively as the Committee of Petitioners, Defendants–Respondents and Cross–Appellants, and Luis Pastoriza, Clerk of the City of Camden, Joseph Ripa, Clerk of Camden County, Phyllis Pearl, Camden County Superintendent of Elections, Camden County Board of Elections, and Camden City Council, Defendants.
• Court: New Jersey Supreme Court

223 N.J. 87

121 A.3d 341

Honorable Dana L. REDD, Camden City Mayor, and Honorable Francisco Moran, Camden City Council President, Plaintiffs–Appellants and Cross–Respondents

v.Vance BOWMAN, Larry Gilliams, Eulisis Delgado, Mary I. Cortes, and Robert Davis, individually and collectively as the Committee of Petitioners, Defendants–Respondents and Cross–AppellantsandLuis Pastoriza, Clerk of the City of Camden, Joseph Ripa, Clerk of Camden County, Phyllis Pearl, Camden County Superintendent of Elections, Camden County Board of Elections, and Camden City Council, Defendants.

A-71-13, A-72-13, A-73 September Term 2013, 073567

Supreme Court of New Jersey.

Argued April 28, 2015.

Decided Aug. 11, 2015.

John C. Eastlack, Jr., argued the cause for appellant and cross-respondent Honorable Dana L. Redd, Camden City Mayor (Weir & Partners, attorneys; Mr. Eastlack and Wesley L. Fenza, Collingswood, on the briefs).

Jay J. Blumberg, Woodbury, argued the cause for appellant and cross-respondent Honorable Francisco Moran, Camden City Council President (Blumberg & Wolk, attorneys).

Anthony Valenti, Mt. Laurel, argued the cause for respondents and cross-appellants Larry Gilliams, Eulisis Delgado, Mary I. Cortes, and Robert Davis (McDowell, Posternock, Apell & Detrick, attorneys).

Todd A. Wigder, Deputy Attorney General, argued the cause for amicus curiae New Jersey Department of Community Affairs (John J. Hoffman, Acting Attorney General of New Jersey, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel).

Renée W. Steinhagen argued the cause for amicus curiae New Jersey Appleseed Public Interest Law Center.

Opinion

Justice PATTERSON delivered the opinion of the Court.

This appeal arises from a challenge by initiative to the City of Camden's decision to disband its municipal police department and to contract with Camden County for the delivery of police services to the City of Camden by a countywide police department. The City of Camden's transition from municipal to county police services followed more than a decade of State oversight of the City's fiscal affairs in a pilot program conducted pursuant to the Municipal Rehabilitation and Economic Recovery Act (MRERA), N.J.S.A. 52:27BBB–1 to –79, in conjunction with several statutes governing municipal finance: the Special Municipal Aid Act (SMAA), N.J.S.A. 52:27D–118.24 to –118.31, the Transitional Aid to Localities program (TAL), N.J.S.A. 52:27D–118.42a, and the Local Budget Law (LBL), N.J.S.A. 40A:4–1 to –89. Citing the need to reduce police-related expenditures and increase police presence in the City of Camden, City officials entered an agreement with the State and Camden County to replace the services provided by the municipal police department with those of the countywide police force's Metro Division.

Defendants, a group of City voters acting as a Committee of Petitioners (Committee), attempted to block the regionalization of the City's police services. The Committee invoked the Optional Municipal Charter Law, N.J.S.A. 40:69A–1 to –210, known as the Faulkner Act, which provides for initiative and referendum in accordance with procedures set forth in the statute. The Committee submitted an initiative petition for the adoption of a proposed ordinance that would have required the City of Camden to create and maintain its own police force, and would have enjoined the City from disbanding its municipal police force and replacing it with a regionalized or countywide police force. The Committee obtained, on its petition, the number of voter signatures required by the Faulkner Act. It sought to have its initiated ordinance certified by the municipal clerk, considered by the City Council, and, if not enacted by the Council, placed on the ballot for voter approval in the 2012 General Election.

Plaintiffs Mayor Dana L. Redd (Mayor Redd), Camden's Mayor, and Camden's Council President Francisco Moran (Council President Moran) filed a complaint seeking to enjoin the Committee's Faulkner Act initiative. Mayor Redd and Council President Moran argued that the proposed initiated ordinance unlawfully restrained the City's legislative power and that it was preempted by MRERA, SMAA, TAL, LBL, and the Police Force Statute, N.J.S.A. 40A:14–118.

The trial court found that the proposed ordinance constituted an invalid divestment of the City's legislative authority. The Appellate Division reversed the trial court's judgment and remanded for a determination whether the state fiscal statutes preempt the proposed ordinance. Redd v. Bowman, 433 N.J.Super. 178, 198, 77 A. 3d 1230 (2013), certif. granted, 217 N.J. 293, 88 A. 3d 190 (2014). Before the Committee's appeal was argued in the Appellate Division, Camden's municipal police force was disbanded. Since May 1, 2013, the Camden County Police Department, Metro Division, has provided police services to the City of Camden.

We granted the parties' petitions and cross-petition for certification. Redd, supra, 217 N.J. 293, 88 A. 3d 190. As a threshold matter, we decline to dismiss this appeal as moot. Although we concur with the Appellate Division that the proposed ordinance does not constitute an improper divestment of the municipal governing body's legislative power, we disagree with the panel's remand of the case for further inquiry into the question of preemption. We find no evidence of a legislative intent to preempt the initiative and referendum procedure set forth in the Faulkner Act in either the municipal finance or police statutes cited in this appeal. Instead, we discern a legislative intent in some of the statutes to retain the Faulkner Act's procedures, including its initiative and referendum provisions. Thus, the Committee's Faulkner Act initiative is not preempted.

However, we note that one component of MRERA, N.J.S.A. 52:27BBB–23(a)(2), affords to the Commissioner of the Department of Community Affairs (Department) a veto power over ordinances passed by the council, subject to override. We hold that any initiative and referendum process affecting Camden's compliance with MRERA must be harmonized with that veto provision, and as such, when the voters consider an ordinance that has been vetoed pursuant to MRERA, they must be informed about the reasons for the Commissioner's veto.

Notwithstanding our holdings that the proposed ordinance neither effected an unlawful divestment of legislative power nor was preempted by state statutes, the relief sought by the Committee in its 2012 petition may not be granted in a manner consistent with the Faulkner Act. The Committee's initiated ordinance would have prevented Camden officials from disbanding the City of Camden's municipal police department and regionalizing its police force in a county department. Because the reorganization that the ordinance was intended to forestall was completed more than two years ago, the ordinance as drafted is inconsistent with current circumstances. Accordingly, the ordinance may no longer be supported by all of the citizens who backed it with their signatures, and it cannot meaningfully be evaluated by the voters. The presence of an out-of-date ordinance on the ballot would contravene the Faulkner Act's objective that voters be presented with a clear, understandable proposed ordinance that they may accept or reject as they see fit.

Accordingly, we affirm in part and reverse in part the judgment of the Appellate Division and remand to the trial court for entry of a judgment barring the Camden Municipal Clerk from certifying the Committee's petition. If the Committee seeks to challenge the Camden police reorganization under the Faulkner Act, it may do so with a new petition and a revised ordinance that reflects the current status of Camden's police services.

I.

A.

Since 1961, Camden has operated under a Mayor–Council form of government under the Faulkner Act, pursuant to N.J.S.A. 40:69A–32. McCartney v. Franco, 82 N.J.Super. 570, 576, 198 A. 2d 490 (Law Div.1964), aff'd, 87 N.J.Super. 292, 209 A. 2d 329 (App.Div.1965). In a Mayor–Council Faulkner Act municipality, subject to certain exceptions identified in the statute, “administrative or executive functions assigned by general law to the governing body [are] exercised by the mayor, and any legislative and investigative functions assigned by general law to the governing body are exercised by the council.” N.J.S.A. 40:69A–32(b). “Those functions shall be exercised pursuant to the procedures set forth in this plan of government, unless other procedures are required by the specific terms of the general law.” Ibid. Among those applicable procedures is the initiative provision of the Faulkner Act, under which “[t]he voters of any municipality may propose any ordinance and may adopt or reject the same at the polls.” N.J.S.A. 40:69A–184.

In 2002, recognizing that “[t]here exists in certain municipalities a continuing state of fiscal distress which endures despite the imposition of a series of measures authorized pursuant to law,” the Legislature enacted MRERA. L. 2002, c. 43 (codified at N.J.S.A. 52:27BBB–2(a) ). Pursuant to MRERA, the State funded projects in Camden under the supervision of a State Economic Recovery Board and a State-appointed Chief Operating Officer (COO). See N.J.S.A. 52:27BBB–6, –7, –36.

On October 28, 2002, pursuant to MRERA, the State assumed comprehensive oversight of Camden's financial, fiscal, and budgetary affairs. The State's oversight of Camden's finances proceeded in two stages prescribed by MRERA. During the “rehabilitation” period, which concluded with the expiration of the COO's term on January 18, 2010, the COO's authority superseded that of Gwendolyn Faison, the former Mayor, and Mayor Redd, who was elected in 2009. See N.J.S.A. 52:27BBB–6, –7. Thereafter, during the five-year “recovery” period, extended by statute to ten years in 2014, L. 2014, c. 60, Mayor Redd has exercised the administrative and executive powers of her office. See N.J.S.A. 52:27BBB–3.

In addition to the extraordinary fiscal...