Redd v. Bowman, 223 N.J. 87 (2015). In Redd v. Bowman, 433 N.J. Super. 178 (App. Div. 2013), discussed here, the Appellate Division held that an initiative petition with a proposed ordinance that would have undone the City of Camden’s decision to disband its police force and instead join a newly-created county police force did not improperly restrain the City’s legislative powers going forward. The Appellate Division remanded the case, however, for a determination as to whether certain state statutes pre-empted the proposed ordinance. Both sides petitioned for certification, which the Supreme Court granted. Today, in a unanimous ruling, the Court affirmed in part and reversed in part. Justice Patterson wrote the Court’s opinion.
Justice Patterson first rejected the City’s argument that the case was moot since the police force had already been disbanded. “This is not a direct action seeking to enjoin the dissolution of the municipal department and the creation of the countywide police force.” Instead, the issue was whether the proposed ordinance was valid and should be acted upon. That was a live, justiciable issue, and the Court proceeded to decide it, applying the de novo standard of review to the interplay among the various statutes implicated by this appeal.
The Court agreed with the Appellate Division that the ordinance did not improperly constrain future legislative action by the City. But Justice Patterson disagreed with the Appellate Division as regarded the pre-emption issues. In a lengthy discussion that applied the five-factor pre-emption test of Overlook Terrace Management Corp. v. West New York Rent Control Bd., 71 N.J. 451 (1976), she concluded that no state statute pre-empted the proposed ordinance. Thus, the Court reversed that part of the Appellate Division’s ruling that had remanded the pre-emption issues to the Law Division for further consideration.
That did not end the matter, however. Due to the passage of time, and the disbanding of the Camden police force and the provision of police services to Camden by the county police force in the interim, the proposed ordinance “no longer reflects reality,” but is “out of date, inaccurate, and misleading.” Nothing in the record supported the idea that those voters who, years earlier, signed the petition to place the ordinance on the ballot would support it now. Moreover, the ordinance would be “impossibly confusing and misleading if placed on the ballot” now, and the Faulkner Act forbade the ordinance from being rewritten “at this late stage.” Accordingly, Justice Patterson concluded, “the Committee’s challenge to the police reorganization must start anew with an ordinance that reflects the facts as they now stand.”
To some extent, the Committee of Petitioners was prejudiced because the appellate proceedings took as long as they did. Justice Patterson noted that the Committee had moved to expedite the appeal in the Appellate Division, but the Appellate Division had denied that motion and had proceeded in the ordinary course. Justice Patterson stated that “[w]hen a party to a Faulkner Act challenge moves to accelerate an appeal from a decision validating or invalidating an ordinance, an appellate court should ordinarily grant the motion and consider the merits of the appeal on an expedited basis.” That would allow a decision while the proposed ordinance is “still timely,” thereby protecting Faulkner Act rights and avoiding the need to start anew, as was required in this case.