Tumpson v. Farina, 218 N.J. 450 (2014). [Disclosure: Victor A. Afanador and Jeffrey A. Shooman, my colleagues at Lite DePalma Greenberg, LLC, represented the municipal defendants in this case]. The Appellate Division in this matter, in an opinion discussed here and reported at 431 N.J. Super. 164 (App. Div. 2013), ruled that the Clerk of the City of Hoboken had violated the Faulkner Act, N.J.S.A. 40:69A-1 to -210, when he refused to accept for filing a referendum petition that, on its face, appeared to lack a sufficient number of valid signatures. That court determined, however, that the Clerk’s action did not constitute a violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c) (“NJCRA”), because there had been no “deprivation” of any right guaranteed by the New Jersey Constitution or laws.
Both sides petitioned the Supreme Court for review, and both petitions were granted. By a 6-0 vote, the Court affirmed the ruling that the Clerk had violated the Faulkner Act. The Court reversed the Appellate Division on the NJCRA issue by a 4-2 vote, finding a violation of the NJCRA and awarding attorneys’ fees to plaintiffs. Justice Albin wrote the majority opinion, in which Chief Justice Rabner, Justice Fernandez-Vina, and Judge Rodriguez joined. Justice Patterson authored the dissenting opinion, which was joined by Justice LaVecchia.
The unanimous ruling that the Clerk had violated the Faulkner Act largely paralleled the Appellate Division’s reasoning. As Justice Albin summarized it after discussing the statutory language and history, “[w]hen the referendum statutes are read as an integrated whole and liberally construed for the purpose of promoting voter participation, it is clear that the municipal clerk does not have the discretion to prevent the filing of a petition based on facial insufficiency.” The Clerk was obligated to accept the petition for filing, review it for compliance, and note any defects in accordance with the statute, which affords petitioners one opportunity to cure such identified defects.
On the NJCRA issue, the majority found that the right to referendum was a “substantive” right, which the NJCRA covers (unlike “procedural” rights, the deprivation of which the NJCRA does not encompass). The majority determined that there had been a “deprivation” of the right to referendum, citing dictionary definitions of that term since the NJCRA does not define it. “Certainly, before plaintiffs secured judicial relief [directing the Clerk to file the petition] the Clerk’s refusal to file [plaintiffs’] referendum petition took away, withheld, and kept plaintiffs from enjoying their right of referendum.” The subsequent ruling of the Law Division did not undo that deprivation even though plaintiffs achieved the referendum that they had sought, and the referendum occurred at the same time (the November 2011 election) that plaintiffs had originally sought, with no delay in that referendum.
Justice Albin adopted the three-part test of Blessing v. Freestone, 520 U.S. 329 (1997), a case involving the federal Civil Rights Act, 42 U.S.C. §1983. That test asks whether “(1) the referendum statutes were intended to confer a ‘benefit’ on plaintiffs as a representative class of voters of Hoboken; (2) the statutory right to challenge an ordinance and place it before the voting public is not ‘so vague [or] amorphous’ that its enforcement would strain judicial competence; and (3) the Faulkner Act ‘unambiguously impose[s] a binding obligation’ on Hoboken.” All three prongs of that test were satisified, in the majority’s view.
The dissenters would not have found a violation of the NJCRA. Justice Patterson observed that another portion of the NJCRA makes “interference” with a protected substantive right a violation of the NJCRA, but only where that interference is accompanied “by threats, intimidation or coercion.” The majority conceded that this “interference” provision was inapplicable since there had been no claim of threats or the like. Justice Patterson contended that, in comparison to “interference,” “deprivation” must mean something more. On that view, there was no “deprivation” of the referendum right here, but at most “an interference, or attempted interference,” since “the right of referendum created by the Faulkner Act was afforded to plaintiffs and all Hoboken citizens in the very election that plaintiffs had identified in their petition.”
Moreover, the dissenters found no basis to impose NJCRA liability where, until the Appellate Division’s decision in this case, “there was no precedential authority that stated precisely how a municipal clerk should process a Faulkner Act petition with a number of signatures that fell facially short” of the number of signatures required. In the dissent’s opinion, the Clerk had “asserted a good faith legal argument in an area of law in which case law provided little guidance.” In that circumstance, NJCRA liability should not have been imposed.