Tumpson v. Farina

• Decision Date: 31 July 2014
• Citation: 218 N.J. 450,95 A.3d 210
• Parties: Daniel TUMPSON, Russell Hoover, Eric Volpe, Cheryl Fallick and Joel Horwitz, Plaintiffs–Appellants and Cross–Respondents, v. James FARINA, in his capacity as Hoboken City Clerk, and the City of Hoboken, Defendants–Respondents and Cross–Appellants, and Mile Square Taxpayer Association 2009, Inc., Gina DeNardo, individually and on behalf of all similarly situated and 611–613, LLC, individually and on behalf of all similarly situated, Intervenors–Respondents.
• Court: New Jersey Supreme Court

218 N.J. 450

95 A.3d 210

Daniel TUMPSON, Russell Hoover, Eric Volpe, Cheryl Fallick and Joel Horwitz, Plaintiffs–Appellants and Cross–Respondents,

v.James FARINA, in his capacity as Hoboken City Clerk, and the City of Hoboken, Defendants–Respondents and Cross–Appellants,andMile Square Taxpayer Association 2009, Inc., Gina DeNardo, individually and on behalf of all similarly situated and 611–613, LLC, individually and on behalf of all similarly situated, Intervenors–Respondents.

Supreme Court of New Jersey.

Argued March 31, 2014.

Decided July 31, 2014.

Renée W. Steinhagen and Flavio L. Komuves, Princeton, argued the cause for appellants and cross-respondents (New Jersey Appleseed Public Interest Law Center, Inc. and Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys).

Victor A. Afanador, Newark, argued the cause for respondents and cross-appellants (Lite DePalma Greenberg, attorneys; Mr. Afanador and Jeffrey A. Shooman, on the briefs).

Sean A. Smith, Roseland, argued the cause for respondents (Brach Eichler, attorneys).

Lawrence S. Lustberg, Newark, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Gibbons, attorneys).

Edward W. Purcell, Associate Counsel, argued the cause for amici curiae New Jersey State League of Municipalities and New Jersey Institution of Local Government Attorneys (William J. Kearns, Jr., General Counsel, attorney).

Justice ALBIN delivered the opinion of the Court.

In many municipalities, citizens have the right to put to a popular vote an ordinance passed by a local legislative body. This process—known as a referendum—allows voters to have “the final say in approving or rejecting an ordinance at the ballot box.” In re Referendum Petition to Repeal Ordinance 04–75, 192 N.J. 446, 450, 931 A.2d 595 (2007). The right of referendum took root more than a century ago, during the Progressive Era, as a response to the increasing influence that special interests played in the passage of legislation. To counteract that influence, the right of referendum armed citizens with the power to appeal directly to the democratic process.

In 1911, Governor Woodrow Wilson signed into law the Walsh Act, L. 1911 c. 221, the first New Jersey law conferring the right of referendum. The Walsh Act extended the right of referendum to citizens in municipalities organized under a commission form of government. Today, citizens in municipalities organized under the Faulkner Act also possess that valuable right. N.J.S.A. 40:69A–185 to –192.

In this case, a city clerk in a Faulkner Act municipality refused to accept for filing a petition for referendum on the ground that the petition did not have a sufficient number of qualifying signatures. Members of a Committee of Petitioners brought an action in lieu of prerogative writ to have the challenged ordinance put on the ballot. They also brought suit under the New Jersey Civil Rights Act, N.J.S.A. 10:6–2(c).

Ultimately, the trial court granted the Committee members the relief they sought, placing the ordinance before the voters and awarding them, as the prevailing party, attorney's fees for the deprivation of a substantive right protected by the Civil Rights Act.

The Appellate Division affirmed all but the trial court's finding of a civil rights violation. The Appellate Division determined that the Committee members did not suffer a deprivation of a right because the court provided the ultimate remedy—the referendum. Accordingly, the award of attorney's fees was vacated.

We now hold that the city clerk violated the right of referendum guaranteed by the Faulkner Act. We also hold that the violation of that right deprived the Committee members—and all of the city's citizens—of a substantive right protected by the Civil Rights Act. The refusal of the city clerk to accept the filing of the referendum petition constituted the deprivation of a substantive right. The vindication of that right under the Civil Rights Act entitled the Committee members to an award of attorney's fees. We therefore affirm in part and reverse in part the judgment of the Appellate Division.

I.

A.

The facts in this case are not in dispute. In February 2011, the Hoboken City Council introduced Ordinance Z–88 to amend the city's rent control code. The ordinance limits the remedies for tenants, living in rent-controlled units, who seek recoupment for rent overcharges. In particular, under the ordinance, a landlord does not have to answer a tenant's request for the calculation of rent paid more than two years earlier or to refund rent overcharges that occurred more than two years earlier. The Council adopted the ordinance and, on March 11, 2011, the mayor approved it.

The City of Hoboken is a Faulkner Act municipality and its citizens are empowered to challenge an ordinance in a referendum, provided the challengers file with the city clerk a petition containing signatures of qualified voters numbering at least fifteen percent of the votes cast in the last election of members of the General Assembly. N.J.S.A. 40:69A–185.

Daniel Tumpson called the Hudson County Clerk's Office and asked for the “total votes cast in [Hoboken] at the last election” of members of the General Assembly. The County Clerk's Office told him that the last General Assembly election was held in 2007 and that 6480 votes were cast in Hoboken. That information was mistaken because the last General Assembly election was held in November of 2009.

The County Clerk's Office error would have significant consequences. Based on the 2007 election tally, the signatures of 972 qualified voters were necessary for a referendum whereas based on the 2009 election tally, the required number was either 1967 or 2189 qualified signatures. The uncertainty about the 2009 numbers is because the City Clerk, in two separate letters, provided plaintiffs with conflicting figures for the number of votes cast in Hoboken in that election, 13,112 votes (April 1, 2011 letter) and 14,593 votes (July 7, 2011 letter).¹

Plaintiffs Daniel Tumpson, Russell Hoover, Eric Volpe, Cheryl Fallick and Joel Horwitz formed a Committee of Petitioners to bring a referendum challenge to Ordinance Z–88. On March 30, 2011, nineteen days after the ordinance was enacted, plaintiffs filed with defendant James Farina, City Clerk of Hoboken, a referendum petition containing 1442 signatures. Plaintiffs relied on the 2007 vote tally. The Clerk refused to accept for filing the referendum petition because it lacked the minimum number of signatures based on the 2009 vote count.

Aware that they had mistakenly relied on the 2007 rather than 2009 election vote count, on April 11, 2011, plaintiffs attempted to file a supplemental petition with an additional 872 signatures. The Clerk rejected this supplemental petition on the ground that the twenty-day period to file a referendum petition had passed.

B.

On May 6, 2011, plaintiffs filed an action in lieu of prerogative writ seeking, among other things, an order directing the Clerk to certify the rent-control referendum petition as valid and to suspend Ordinance Z–88 until the referendum was approved or disapproved by the voters. Plaintiffs also sought relief under the New Jersey Civil Rights Act, N.J.S.A. 10:6–2(c), for a violationof their statutory right of referendum.² Plaintiffs proceeded by way of an order to show cause.

On June 14, 2011, the trial court granted plaintiffs partial relief, finding that the Clerk's refusal to accept for filing the referendum petition violated provisions of the Faulkner Act. The court maintained that once the petition was delivered to the Clerk, “it became his duty under the provisions of the statute to file” the petition and examine its sufficiency. The court ordered the Clerk to process both the petition and amended petition and to determine their sufficiency in accordance with the applicable statutes. The court also noted that if the Clerk deemed the petition to be insufficient, the statute permitted plaintiffs ten days to amend with a supplemental petition. The court did not address the civil-rights claim.

On July 7, the Clerk forwarded a letter to plaintiffs advising that only 1573 of the signatures on the original petition and supplemental filing were valid, falling short of the 2189 signatures required to certify the petition. The Clerk concluded that because the petition was not valid, the ordinance would not be suspended and the referendum would not go forward.

On July 18, plaintiffs submitted an additional 844 signatures to supplement the referendum petition. On July 25, the Clerk determined that 651 of those signatures were valid, bringing the total number of valid signatures from all three submissions to 2224, more than the fifteen percent required for the referendum to proceed. The Clerk, however, rejected the referendum petition because plaintiffs had “not submitted these signatures in a timely manner.”

At this point, the procedural history becomes a tangle of motions and appeals on the trial and appellate levels. A blow-by-blow description of the litigants' maneuvers is not necessary for our purposes. Suffice it to say, the matter was remanded to the trial court for a ruling on plaintiffs' motion to enforce litigants' rights and for a ruling on the civil-rights claim. On August 25, the court ordered the Clerk to certify the petition and enjoined enforcement of the ordinance pending a “repeal of the ordinance by [a] vote of the council or approval or disapproval of the ordinance by the voters,” quoting N.J.S.A. 40:69A–189. Intervenor Miles Square Taxpayer Association filed a Notice of Appeal and moved for a stay of the trial court's order. The stay was granted by the Appellate Division and then vacated by this Court.

On October 24, the trial court granted summary judgment in favor of plaintiffs on their civil-rights claim. The court found that defendants Hoboken and the City Clerk “violated Plaintiffs' substantive right under the referendum laws and are...