“Compact” Ward Boundaries Under the Municipal Ward Law

Jersey City United Against the New Ward Map v. Jersey City Ward Commission, ___ N.J. Super. ___ (App. Div. 2024). [Disclosure: My firm, Lite DePalma Greenberg & Afanador, LLC, represents the City of Jersey City and certain of its agencies in some matters but was not involved in this case]. The Municipal Ward Law, N.J.S.A. 40:44-9 to -18 (“the ML Law”), requires that municipalities that choose to adopt a ward structure for purposes of electing governing body members create a Ward Commission and review the ward boundaries every ten years. The Ward Commission is then to “proceed to make such adjustments in ward boundaries as shall be necessary to conform them to the requirements of” the MW Law. Wards must be “contact and contiguous” and “[t]he population of the most populous ward so created shall not differ from the population of the least populous ward so created by more than [ten percent] of the mean population of the wards derived by dividing the total population of the municipality by the number of wards created.”

Jersey City’s Ward Commission engaged in that process. Prior to the Commission’s review, Jersey City had been divided into six wards, lettered A through F. The map that the Commission generated retained that structure but changed the boundaries of certain wards to account for population changes. (Today’s opinion of the Appellate Division contains color maps showing the “before and after,” but that map seemingly cannot be copied into this post.) Two sets of plaintiffs brought actions in lieu of prerogative writ to challenge the resulting map and boundaries.

As Judge Gilson summarized in his opinion for the Appellate Division today, covering both cases, plaintiffs “contend[ed] that the new ward map violates the Municipal Ward Law (the MW Law), N.J.S.A. 40:44-9 to -18, the New Jersey Civil Rights Act (the CR Act), N.J.S.A. 10:6-1 to -2, and their rights of free speech, free association, and equal protection under the New Jersey Constitution. They also argue that the Commission did not comply with the Open Public Meetings Act (the OPMA), N.J.S.A. 10:4-6 to -21.”As Judge Gilson summarized in his opinion for the Appellate Division today, plaintiffs “contend[ed] that the new ward map violates the Municipal Ward Law (the MW Law), N.J.S.A. 40:44-9 to -18, the New Jersey Civil Rights Act (the CR Act), N.J.S.A. 10:6-1 to -2, and their rights of free speech, free association, and equal protection under the New Jersey Constitution. They also argue[d] that the Commission did not comply with the Open Public Meetings Act (the OPMA), N.J.S.A. 10:4-6 to -21.”

The Law Division granted a motion to dismiss the case in its entirety for failure to state a claim. Plaintiffs appealed, and today the Appellate Division affirmed in part and reversed in part, applying de novo review. Judge Gilson’s opinion upheld the dismissal of all claims except the one under the MW Law.

Judge Gilson first addressed a statute of limitations issue as to one of the complaints. Defendants contended that suit was filed after the 45-day accrual period provided by Rule 4:69-6(a). The Law Division had agreed with defendants, but the Appellate Division found the filing timely. Moreover, the panel said, “because the adoption of the new ward boundaries and ward map is an issue of broad public concern, it would have been in the interest of justice to extend the time to consider the [challenged] complaint in lieu of prerogative writs,” especially since the other complaint was timely and was being considered.

The panel reversed as to the MW Law claim. “On a motion to dismiss, and without any factual record, the trial court in these matters simply concluded that the wards were compact. The court needed to conduct some proceeding focused on the question of whether there was a rational basis for the Commission’s configuration of the wards. That proceeding, however, should be limited. Given the allegations in plaintiffs’ complaints, they are not entitled to discovery, and the fact-finding proceedings should be carefully restricted. The inquiry is simply to determine if the Commissioners had a rational basis for their configuration, so the court can then determine whether the wards are compact, given the flexibility afforded by the MW Law.” The case was remanded for a decision on that issue.

All of plaintiffs’ other claims failed, as the Law Division had ruled. Plaintiffs’ equal protection claim was that the Commission had wrongly split “neighborhoods and other communities of interest” into different wards. But plaintiffs conceded that there was no racial or other invidious discrimination in the new ward configuration. They were simply objecting that some people were moved to different wards than before, but “[t]hat, however, is exactly what the MW Law authorizes.”

The free speech and association claims also did not avail. Judge Gilson noted that no one was deprived of any speech or associational rights. Instead, the claim was that Councilman Gilmore, who represented Ward F, had his seat jeopardized by the redrawing of ward boundaries. The panel found no valid claim. “The MW Law expressly states that when wards are redrawn, incumbent councilpersons are not removed from their elected positions. N.J.S.A. 40:44-17. Thus, it is pure speculation as to whether Gilmore will retain his position as councilperson for Ward F at the next election. More fundamentally, all residents of the City, including … plaintiffs, will continue to have the same free speech and association rights to support or oppose the re-election of Gilmore. While some residents who were formerly part of Ward F may not be able to directly vote for Gilmore, they can exercise their rights of free speech and association to support candidates of their choice in their new wards.”

The OPMA claim failed because the Commissioners certified that “all non-public working sessions involved less than a quorum of the Commissioners. Although consideration of those certifications effectively converted the motion to dismiss into a motion for summary judgment on the OPMA claims, the Commission was still entitled to a dismissal of those claims.” Besides,” plaintiffs cannot show that the Commission took any formal action in a non-public meeting. There is no dispute that the Commission voted to adopt new ward boundaries and a new map at the January 22, 2022 public meeting. Adopting new boundaries and a map are the only actions required of the Commissioners under the MW Law. In short, plaintiffs have not alleged, nor could they allege, viable OPMA claims.”

Finally, the Civil Rights Act claim failed because it was primarily based on the claimed deprivation of rights of free speech and association, claims that the panel rejected as already discussed. A further allegation that the redrawing was meant to retaliate against voters for Gilmore was too speculative, again as Judge Gilson had already explained.