City Clerk Did Not Comply With Faulkner Act, But That Did Not Constitute a Violation of the New Jersey Civil Rights Act

Tumpson v. Farina, 431 N.J. Super. 164 (App. Div. 2013).  This case arose under the Faulkner Act, N.J.S.A. 40:69A-1 to -210.  [Disclosure:  My firm, Lite DePalma Greenberg, LLC, represented defendants in this matter].  In Faulkner Act municipalities, citizens may petition to hold a referendum as to an ordinance that the governing body passes.  This referendum process is designed to function as a check on local legislative power and as an enhancement of citizen involvement. 

The facts were complicated, but here is a summary.  The City of Hoboken passed an amendment, Ordinance Z-88, to its rent control code.  Plaintiffs disagreed with Z-88 and got together as a committee of petitioners to gather signatures on a petition for a citizen referendum on Z-88.  They presented the petition to the City Clerk, defendant Farina, for filing.  He marked the petition “received for review but not filed.”  He did that because he could see, from the face of the petition, that there were not nearly enough signatures on it to trigger a referendum.  Filing the petition would thus have been pointless.  Moreover, under the Faulkner Act, Z-88 would have been stayed until a disposition of the petition, including a vote if one were proper.  Thus, filing the facially insufficient petition would have unwarrantably frustrated the action of the governing body in adopting Z-88.  When plaintiffs filed a “supplemental petition” with more signatures, pursuant to a Faulkner Act provision that gives petitioners one and only one chance to cure any deficiencies in an original petition, Farina similarly declined to file it, stating that it was untimely. 

Plaintiffs sued, seeking various forms of relief, including a declaration that Farina had violated the Faulkner Act, an injunction against enforcement of Z-88 pending further proceedings, and attorneys’ fees under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (“NJCRA”), for Farina’s alleged violation of that statute.  The Law Division found that Farina had acted wrongly in refusing to file the petition.  The judge ordered that Farina cetify the petition as valid, which he did.  The requested referendum occurred, and the voters rejected plaintiffs’ effort to overturn Z-88.  A second Law Division judge ruled that Farina had violated the NJCRA and awarded attorneys’ fees to plaintiffs on that basis.  Farina and the City appealed, and plaintiffs cross-appealed.  In an opinion by Judge St. John, the Appellate Division agreed with the first judge that the petition should have been filed, but reversed the fee award by the second judge.

As Judge St. John observed, the issue of whether Farina had acted properly in refusing to file the petition was technically moot (a point that no party raised), since the petition was later filed, by order of the first Law Division judge, and the referendum in fact occurred.  Thus, petitioners’ rights were fully protected.  Nonetheless, since “a broad public interest concerrning referenda is involved, and … the circumstances which gave rise to this litigation are likely to recur,” the court gave guidance on the Faulkner Act issues.

Because the interpretation of the Faulkner Act was a pure legal issue, the de novo standard of review applied.  Judge St. John recited the law about the need for courts to effectuate legislative intent, and to apply the plain language of statutes if that language is clear.  He concluded that “nothing in the statute authorizes a municipal clerk to not file a petition, particularly since the statute states the petition ‘shall be filed[,]” thereby imposing an unequivocal filing obligation on the municipal clerk,” even as to facially insufficient petitions.  The opinion then went on to describe how the entire process should work, emphasizing that petitioners get one chance to cure deficiencies in an original petition, not more (although in the unique circumstances of this case they got three opportunities, and the panel saw no reason to reject that).  Thus, the Law Division’s ruling that the failure to file the petition was improper was affirmed.

Judge St. John rejected, however, the decision of the second Law Division judge to award attorneys’ fees under the NJCRA.  That issue too was subject to de novo review.  The panel found that the non-compliance with the Faulkner Act simply did not constitute a NJCRA violation.  NJCRA violations arise only when one is “deprived of a right” or where one’s “rights are interfered with by threats, intimidation, coercion or force.”  Plaintiffs were not deprived of any rights because, among other things, the referendum that they sought in fact occurred.  Since there was no evidence of any threats or the like, there was no basis for finding an NJCRA violation, and therefore no basis for a fee award under that statute.