Another Important Initiative and Referendum Decision

Redd v. Bowman, 433 N.J. Super. 178 (App. Div. 2013).  This is another case that involves the power of citizens of a municipality established under the Faulkner Act, N.J.S.A. 40:69A-1 to -210, to propose municipal ordinances by initiative, N.J.S.A. 40:69A-184, or approve or reject at the polls a municipal ordinance that has been passed by the governing body, N.J.S.A. 40:69A-185.  The City of Camden had decided to disband its police force and to join a newly-created county police force instead.  A petitioners’ committee (“Committee”) consisting of citizens of Camden, among them defendant Bowman, sought to file an initiative petition with a proposed ordinance in response to the City’s decision.  Plaintiffs, led by Camden Mayor Redd, filed this action to declare invalid the proposed ordinance that the initiative sought to have adopted.

The Law Division ruled that the proposed ordinance did not ‘unduly restrict” Camden’s statutory authority to create and establish a police force.  However, that court prohibited the City Clerk from accepting the initiative petition for filing or placing the proposed ordinance on the ballot because the proposed ordinance “create[d] an undue restraint on the future exercise of municipal legislative power.”  The Committee appealed, and the Appellate Division reversed in an opinion by Judge Messano.  Because this was “a question of statutory interpretation,” a purely legal issue, the Appellate Division exercised de novo review. 

Citing cases and a treatise, Judge Messano agreed that “a governing body cannot, absent specific legislative permission, divest its successors of legislative power.”  But an amendment to the Faulkner Act, N.J.S.A. 40:69A-196(a), specifically gave “the voters in a Faulkner Act municipality the power to restrict the legislative actions of the present governing body and its successor for a period of three years, which restriction may only be removed if the governing body returns the issue to the people for a vote.”  The ordinance proposed by the Committee did not purport to bind the governing body for more than three years.  That ordinance merely called for the “continued existence” of the municipal police department and prohibited the City from disbanding the force or joining a county-wide force, requiring that Camden “shall instead continue to maintain its own police department.”  An initiative ordinance “without temporal limitation … was not an improper restraint on the future exercise of legislative action.”  The panel thus reversed the Law Division’s decision.

But that did not end the matter.  There were two state statutes that arguably pre-empted municipal action “in the field of municipal finance in Camden,” an area that the existence of a police force certainly implicated.  The Law Division had expressly declined to address whether either of those statutes pre-empted the ordinance proposed by the Committee.  Judge Messano discussed those two statutes in some detail, and remanded the pre-emption issues for further consideration under a five-part pre-emption test.