Daniel Tumpson v. James Farina (072813)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Daniel Tumpson, et al. v. James Farina, et al. (A-13/14-13) (072813)
Argued March 31, 2014 -- Decided July 31, 2014
ALBIN, J., writing for a majority of the Court.
In this appeal, the Court addresses two issues: whether the Clerk of the City of Hoboken violated the
referendum provisions of the Faulkner Act by refusing to file a petition and, if so, whether the City Clerk deprived
plaintiffs of a substantive statutory right protected by the New Jersey Civil Rights Act, thus entitling them to
attorney’s fees.
The City of Hoboken is a Faulkner Act municipality and its citizens are empowered to challenge an
ordinance in a referendum, provided the challengers file with the city clerk a petition containing signatures of
qualified voters numbering at least fifteen percent of the votes cast in the last election of members of the General
Assembly. N.J.S.A. 40:69A-185. In February 2011, the Hoboken City Council introduced Ordinance Z-88 to
amend the city’s rent control code. The ordinance limits the remedies for tenants, living in rent-controlled units,
who seek recoupment for rent overcharges. The Council adopted the ordinance and, on March 11, 2011, the mayor
approved it. Plaintiff Daniel Tumpson and others formed a Committee of Petitioners to bring a referendum
challenge to the ordinance. Tumpson was informed by the Hudson County Clerk’s Office that the last General
Assembly election was held in 2007 and that 6480 votes were cast in Hoboken. That information was mistaken
because the last General Assembly election was held in 2009. Based on the 2007 election tally, the signatures of
972 qualified voters were necessary for a referendum, whereas based on the 2009 tally the required number was
either 1967 or 2189. City Clerk James Farina provided plaintiffs, in separate letters, two different tallies for 2009.
On March 30, 2011, plaintiffs filed with the City Clerk a referendum petition containing 1442 signatures. The Clerk
refused to accept the petition because it lacked the minimum number of signatures based on the 2009 vote count.
On April 11, 2011, plaintiffs attempted to file a supplemental petition with an additional 872 signatures. The clerk
rejected this supplemental petition on the ground that the twenty-day period to file a referendum petition had passed.
On May 6, 2011, plaintiffs filed an action in lieu of prerogative writ seeking, among other things, an order
directing the Clerk to certify the rent-control referendum petition as valid and to suspend Ordinance Z-88 until the
referendum was approved or disapproved by the voters. Plaintiffs also sought relief under the New Jersey Civil
Rights Act, N.J.S.A. 10:6-2(c), for a violation of their statutory right of referendum. On June 14, 2011, the trial
court granted plaintiffs partial relief, finding that the Clerk’s refusal to accept for filing the referendum petition
violated provisions of the Faulkner Act. The court ordered the Clerk to process both the petition and amended
petition and to determine their sufficiency in accordance with the applicable statutes. The court did not address the
civil-rights claim. The Clerk then determined that the signatures in the original petition and supplemental filing fell
short of the required signatures. Plaintiffs submitted additional signatures, bringing the total to 2224, more than the
fifteen percent required for the referendum to proceed. The Clerk, however, rejected the referendum petition
because the additional signatures were not submitted in a timely manner.
After a tangled path of motions and appeals, the matter was remanded to the trial court for a ruling on
plaintiffs’ motion to enforce litigants’ rights and for a ruling on the civil-rights claim. On August 25, the court
ordered the Clerk to certify the petition and enjoined enforcement of the ordinance. On October 24, the trial court
granted summary judgment in favor of plaintiffs on their civil-rights claim, finding that defendants Hoboken and the
City Clerk “violated Plaintiffs’ substantive right under the referendum laws and are therefore liable” under N.J.S.A.
10:6-2(c) of the New Jersey Civil Rights Act. The court also found that plaintiffs were entitled to an award of
attorney’s fees and costs pursuant to N.J.S.A. 10:6-2(f). On November 8, 2011, the ordinance was submitted to the
voters of Hoboken and the voters approved it. Defendants appealed the finding of a civil-rights violation and the
award of attorney’s fees.
1
In a published opinion, the Appellate Division affirmed all but the trial court’s finding of a civil rights
violation. Tumpson v. Farina, 431 N.J. Super. 164 (App. Div. 2013). The appellate panel determined that the
Committee members did not suffer a deprivation of a right because the court provided the ultimate remedy -- the
referendum. Accordingly, the award of attorney’s fees was vacated. The Supreme Court granted plaintiffs’ petition
for certification and defendants’ cross-petition. 216 N.J. 4 (2013).
HELD: The City Clerk violated the right of referendum guaranteed by the Faulkner Act and deprived plaintiffs of a
substantive right protected by the Civil Rights Act, thus entitling them to attorney’s fees.
1. The Faulkner Act, N.J.S.A. 40:69A-185 to -192, contemplates a two-step process for validating a referendum
petition. If the initial petition is found insufficient, then a corrective, supplemental petition may be filed. Failure to
attach to the petition the requisite number of signatures is treated no differently under the Faulkner Act than
attaching a large number of signatures of unqualified voters. The supplemental petition allows the referendum
proponents to file a petition conforming with the statutory scheme, regardless of the reasons that made the initial
petition deficient. The municipal clerk does not have the discretion to prevent the filing of a petition based on facial
insufficiency. The Hoboken City Clerk violated the Faulkner Act by rejecting plaintiffs’ petition. (pp. 14-26)
2. Plaintiffs’ claim under the Civil Rights Act must rise or fall on whether the Clerk deprived them of a substantive
right. Plaintiffs must prove that (1) “the Constitution or laws of this State” conferred on them a substantive right; (2)
the City Clerk deprived them of that right; and (3) the Clerk was “acting under color of law” when he did so.
N.J.S.A. 10:6-2(c). The Hoboken City Clerk was clearly acting in his official capacity and therefore under color of
law when he rejected plaintiffs’ referendum petition. The Court must therefore examine two specific issues:
whether “the power of referendum” granted to the people by the Faulkner Act constitutes a substantive right and, if
so, whether the City Clerk deprived plaintiffs of that right. (pp. 26-28)
3. Modeled after the analogous Federal Civil Rights Act, 42 U.S.C.A. § 1983, the State Civil Rights Act is intended
to provide what Section 1983 does not: a remedy for the violation of substantive rights found in the State
Constitution and laws. To determine whether the State Constitution or state law confers a right on a class of
individuals, the Court applies the test developed by the United States Supreme Court in Blessing v. Freestone, 520
U.S. 329 (1997). A plaintiff must show that (1) the Legislature intended the statute to “benefit the plaintiff”; (2)
“the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain
judicial competence”; and (3) “the statute must unambiguously impose a binding obligation on the States.” Id. at
340-41. The Court has no difficulty concluding that the “power of referendum” is a right under that test. First, the
Faulkner Act confers a benefit on plaintiffs and the entire class of voters in Hoboken. Second, this is not the
enforcement of an amorphous statute that strains judicial competence. Last, the Faulkner Act unmistakably imposes
a binding obligation on the Hoboken City Clerk to accept for filing a referendum petition, to certify the petition if it
meets the statutory criteria, and to place the challenged ordinance before the voters. In addition, plaintiffs must
show that the right is substantive, not procedural. “Substantive” addresses those rights and duties that may give rise
to a cause of action. Because the City Clerk’s failure to file the referendum petition gave rise to a cause of action,
by definition, the right of referendum is substantive in nature. (pp. 28-36)
4. Because plaintiffs have satisfied the three-factor Blessing test and because the right of referendum is substantive,
defendants must show that the enforcement of this right under the New Jersey Civil Rights Act is incompatible with
the Faulkner Act. Nothing in the broad-based language of the Civil Rights Act remotely suggests that the drafters
did not intend its remedies to apply to enforcement of the right of referendum. Indeed, one of the most powerful
remedies of the New Jersey Civil Rights Act, the attorney’s fees provision of N.J.S.A. 10:6-2(f), makes the two
legislative schemes complementary. With that provision, citizens thwarted by official action denying them the
benefit of a substantive statutory right have the ability to attract competent counsel and take an appeal directly to the
voters who can then approve or reject an ordinance at the polls. The Court concludes that the Faulkner Act confers a
substantive right of referendum protected by the New Jersey Civil Rights Act. (pp. 36-40)
5. That the Law Division later provided a judicial remedy by compelling the Clerk to abide by the Faulkner Act and
process the referendum petition does not alter the nature of the Clerk’s earlier act, which deprived plaintiffs of a
statutory right. Moreover, that the Clerk acted in good faith or that no precedential authority had spoken precisely to
the facts in this case does not bar equitable relief under the New Jersey Civil Rights Act -- no more than it bars relief
2
under Section 1983 of the federal Civil Rights Act. The City Clerk deprived plaintiffs of their substantive right of
referendum when he refused to file their referendum petition and plaintiffs had a right to equitable relief to enforce
that right. (pp. 40-48)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED to the trial court for further proceedings consistent with the Court’s opinion.
JUSTICE PATTERSON, CONCURRING IN PART and DISSENTING IN PART, joined by
JUSTICE LaVECCHIA, submits that the majority applies the New Jersey Civil Rights Act beyond its intended
parameters when it construes a municipality’s assertion of a good faith legal position in an area of unsettled law to
be a deprivation of plaintiffs’ civil rights within the meaning of N.J.S.A. 10:6-2(c).
CHIEF JUSTICE RABNER, JUSTICE FERNANDEZ-VINA, and JUDGE RODRÍGUEZ
(temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE PATTERSON filed a separate opinion,
concurring in part and dissenting in part, in which JUSTICE LaVECCHIA joins. JUDGE CUFF
(temporarily assigned) did not participate.
3
SUPREME COURT OF NEW JERSEY
A-13/14 September Term 2013
072813
DANIEL TUMPSON, RUSSELL
HOOVER, ERIC VOLPE, CHERYL
FALLICK and JOEL HORWITZ,
Plaintiffs-Appellants
and Cross-Respondents,
v.
JAMES FARINA, in his capacity
as HOBOKEN CITY CLERK, and
THE CITY OF HOBOKEN,
Defendants-Respondents
and Cross-Appellants,
and
MILE SQUARE TAXPAYER
ASSOCIATION 2009, INC., GINA
DENARDO, individually and on
behalf of all similarly
situated and 611-613, LLC,
individually and on behalf of
all similarly situated,
Intervenors-Respondents.
Argued March 31, 2014 – Decided July 31, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 431 N.J. Super. 164 (2013).
Renée W. Steinhagen and Flavio L. Komuves
argued the cause for appellants and cross-
respondents (New Jersey Appleseed Public
Interest Law Center, Inc. and Zazzali,
Fagella, Nowak, Kleinbaum & Friedman,
attorneys).
1
Victor A. Afanador argued the cause for
respondents and cross-appellants(Lite
DePalma Greenberg, attorneys; Mr. Afanador
and Jeffrey A. Shooman, on the briefs).
Sean A. Smith argued the cause for
respondents (Brach Eichler, attorneys).
Lawrence S. Lustberg argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Gibbons, attorneys).
Edward W. Purcell, Associate Counsel, argued
the cause for amici curiae New Jersey State
League of Municipalities and New Jersey
Institution of Local Government Attorneys
(William J. Kearns, Jr., General Counsel,
attorney).
JUSTICE ALBIN delivered the opinion of the Court.
In many municipalities, citizens have the right to put to a
popular vote an ordinance passed by a local legislative body.
This process -- known as a referendum -- allows voters to have
“the final say in approving or rejecting an ordinance at the
ballot box.” In re Referendum Petition to Repeal Ordinance 04-
75, 192 N.J. 446, 450 (2007). The right of referendum took root
more than a century ago, during the Progressive Era, as a
response to the increasing influence that special interests
played in the passage of legislation. To counteract that
influence, the right of referendum armed citizens with the power
to appeal directly to the democratic process.
In 1911, Governor Woodrow Wilson signed into law the Walsh
Act, L. 1911 c. 221, the first New Jersey law conferring the
2
right of referendum. The Walsh Act extended the right of
referendum to citizens in municipalities organized under a
commission form of government. Today, citizens in
municipalities organized under the Faulkner Act also possess
that valuable right. N.J.S.A. 40:69A-185 to -192.
In this case, a city clerk in a Faulkner Act municipality
refused to accept for filing a petition for referendum on the
ground that the petition did not have a sufficient number of
qualifying signatures. Members of a Committee of Petitioners
brought an action in lieu of prerogative writ to have the
challenged ordinance put on the ballot. They also brought suit
under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c).
Ultimately, the trial court granted the Committee members
the relief they sought, placing the ordinance before the voters
and awarding them, as the prevailing party, attorney’s fees for
the deprivation of a substantive right protected by the Civil
Rights Act.
The Appellate Division affirmed all but the trial court’s
finding of a civil rights violation. The Appellate Division
determined that the Committee members did not suffer a
deprivation of a right because the court provided the ultimate
remedy -- the referendum. Accordingly, the award of attorney’s
fees was vacated.
3
We now hold that the city clerk violated the right of
referendum guaranteed by the Faulkner Act. We also hold that
the violation of that right deprived the Committee members --
and all of the city’s citizens -- of a substantive right
protected by the Civil Rights Act. The refusal of the city
clerk to accept the filing of the referendum petition
constituted the deprivation of a substantive right. The
vindication of that right under the Civil Rights Act entitled
the Committee members to an award of attorney’s fees. We
therefore affirm in part and reverse in part the judgment of the
Appellate Division.
I.
A.
The facts in this case are not in dispute. In February
2011, the Hoboken City Council introduced Ordinance Z-88 to
amend the city’s rent control code. The ordinance limits the
remedies for tenants, living in rent-controlled units, who seek
recoupment for rent overcharges. In particular, under the
ordinance, a landlord does not have to answer a tenant’s request
for the calculation of rent paid more than two years earlier or
to refund rent overcharges that occurred more than two years
earlier. The Council adopted the ordinance and, on March 11,
2011, the mayor approved it.
4
The City of Hoboken is a Faulkner Act municipality and its
citizens are empowered to challenge an ordinance in a
referendum, provided the challengers file with the city clerk a
petition containing signatures of qualified voters numbering at
least fifteen percent of the votes cast in the last election of
members of the General Assembly. N.J.S.A. 40:69A-185.
Daniel Tumpson called the Hudson County Clerk’s Office and
asked for the “total votes cast in [Hoboken] at the last
election” of members of the General Assembly. The County
Clerk’s Office told him that the last General Assembly election
was held in 2007 and that 6480 votes were cast in Hoboken. That
information was mistaken because the last General Assembly
election was held in November of 2009.
The County Clerk’s Office error would have significant
consequences. Based on the 2007 election tally, the signatures
of 972 qualified voters were necessary for a referendum whereas
based on the 2009 election tally, the required number was either
1967 or 2189 qualified signatures. The uncertainty about the
2009 numbers is because the City Clerk, in two separate letters,
provided plaintiffs with conflicting figures for the number of
votes cast in Hoboken in that election, 13,112 votes (April 1,
2011 letter) and 14,593 votes (July 7, 2011 letter).1
1
The Clerk did not explain the discrepancy in his letters.
5
Plaintiffs Daniel Tumpson, Russell Hoover, Eric Volpe,
Cheryl Fallick and Joel Horwitz formed a Committee of
Petitioners to bring a referendum challenge to Ordinance Z-88.
On March 30, 2011, nineteen days after the ordinance was
enacted, plaintiffs filed with defendant James Farina, City
Clerk of Hoboken, a referendum petition containing 1442
signatures. Plaintiffs relied on the 2007 vote tally. The
Clerk refused to accept for filing the referendum petition
because it lacked the minimum number of signatures based on the
2009 vote count.
Aware that they had mistakenly relied on the 2007 rather
than 2009 election vote count, on April 11, 2011, plaintiffs
attempted to file a supplemental petition with an additional 872
signatures. The clerk rejected this supplemental petition on
the ground that the twenty-day period to file a referendum
petition had passed.
B.
On May 6, 2011, plaintiffs filed an action in lieu of
prerogative writ seeking, among other things, an order directing
the Clerk to certify the rent-control referendum petition as
valid and to suspend Ordinance Z-88 until the referendum was
approved or disapproved by the voters. Plaintiffs also sought
relief under the New Jersey Civil Rights Act, N.J.S.A. 10:6-
6
2(c), for a violation of their statutory right of referendum.2
Plaintiffs proceeded by way of an order to show cause.
On June 14, 2011, the trial court granted plaintiffs
partial relief, finding that the Clerk’s refusal to accept for
filing the referendum petition violated provisions of the
Faulkner Act. The court maintained that once the petition was
delivered to the Clerk, “it became his duty under the provisions
of the statute to file” the petition and examine its
sufficiency. The court ordered the Clerk to process both the
petition and amended petition and to determine their sufficiency
in accordance with the applicable statutes. The court also
noted that if the Clerk deemed the petition to be insufficient,
the statute permitted plaintiffs ten days to amend with a
supplemental petition. The court did not address the civil-
rights claim.
On July 7, the Clerk forwarded a letter to plaintiffs
advising that only 1573 of the signatures on the original
petition and supplemental filing were valid, falling short of
the 2189 signatures required to certify the petition. The Clerk
concluded that because the petition was not valid, the ordinance
would not be suspended and the referendum would not go forward.
2
Mile Square Taxpayer Association 2009, Inc., a nonprofit
association of property owners of multifamily residences, was
granted leave to intervene in the action.
7
On July 18, plaintiffs submitted an additional 844
signatures to supplement the referendum petition. On July 25,
the Clerk determined that 651 of those signatures were valid,
bringing the total number of valid signatures from all three
submissions to 2224, more than the fifteen percent required for
the referendum to proceed. The Clerk, however, rejected the
referendum petition because plaintiffs had “not submitted these
signatures in a timely manner.”
At this point, the procedural history becomes a tangle of
motions and appeals on the trial and appellate levels. A blow-
by-blow description of the litigants’ maneuvers is not necessary
for our purposes. Suffice it to say, the matter was remanded to
the trial court for a ruling on plaintiffs’ motion to enforce
litigants’ rights and for a ruling on the civil-rights claim.
On August 25, the court ordered the Clerk to certify the
petition and enjoined enforcement of the ordinance pending a
“repeal of the ordinance by [a] vote of the council or approval
or disapproval of the ordinance by the voters,” quoting N.J.S.A.
40:69A-189. Intervenor Miles Square Taxpayer Association filed
a Notice of Appeal and moved for a stay of the trial court’s
order. The stay was granted by the Appellate Division and then
vacated by this Court.
On October 24, the trial court granted summary judgment in
favor of plaintiffs on their civil-rights claim. The court
8
found that defendants Hoboken and the City Clerk “violated
Plaintiffs’ substantive right under the referendum laws and are
therefore liable” under N.J.S.A. 10:6-2(c) of the New Jersey
Civil Rights Act. The court also found that plaintiffs were
entitled to an award of attorney’s fees and costs pursuant to
N.J.S.A. 10:6-2(f), an amount that was later determined to be
$69,564.18.
On November 8, 2011, the ordinance was submitted to the
voters of Hoboken. The voters approved the ordinance.
Defendants appealed.
II.
The Appellate Division identified two issues: whether the
Hoboken City Clerk failed to comply with the referendum
provisions of the Faulkner Act and, if so, whether that failure
constituted a violation of the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 to -2, which allows the prevailing party an
award of attorney’s fees. Tumpson v. Farina, 431 N.J. Super.
164, 168 (App. Div. 2013).
The appellate panel observed that under the framework of
the Faulkner Act, a committee of petitioners is allowed to
submit a referendum petition and then, if the petition is
defective, to file supplemental papers to amend the petition.
Id. at 179. The panel determined that “[a] municipal clerk
9
lacks the discretion to refuse to file a petition, even if the
signatures thereon are less than the mandated fifteen percent of
qualified voters.” Ibid. From its review of the statutory
scheme, the panel was “satisfied that the Legislature intended
that petitioners, as here, should enjoy the right to amend an
insufficient petition for referendum, even if the original
petition did not contain signatures from fifteen percent of
qualified voters.” Id. at 180. For that reason, the panel
concluded that the Clerk’s “refusal to file the original
petition was plainly contrary to [N.J.S.A. 40:69A-187].” Ibid.
Despite this statutory violation, the panel did not find
that defendants “deprived” plaintiffs of a substantive statutory
right protected by N.J.S.A. 10:6-2(c) of the New Jersey Civil
Rights Act. Id. at 182. It reasoned that plaintiffs were “not
deprived of [their] right to referendum because the Ordinance
was submitted to the voters of Hoboken.” Id. at 181. The
panel, moreover, did not find that defendants “interfered” with
any of plaintiffs’ substantive rights by “threats, intimidation
or coercion,” N.J.S.A. 10:6-2(c), an alternate ground for a
civil-rights violation. Id. at 182. Therefore, because
plaintiffs were not a prevailing party under the Civil Rights
Act, the panel vacated the attorney’s fees award. Ibid.
We granted both plaintiffs’ petition for certification and
defendants’ cross-petition. Tumpson v. Farina, 216 N.J. 4
10
(2013). Plaintiffs challenge both the Appellate Division’s
finding that the City Clerk’s rejection of the referendum
petition did not constitute a civil-rights violation and its
vacation of the award of attorney’s fees. Defendants challenge
the Appellate Division’s conclusion that the City Clerk did not
have the authority to refuse for filing a petition that was
insufficient on its face. We also granted motions from the
American Civil Liberties Union of New Jersey (ACLU), the New
Jersey League of Municipalities, and the New Jersey Institution
of Local Government Attorneys, to appear as amici curiae.
III.
A.
Plaintiffs essentially argue that, under the reasoning of
the Appellate Division, had they not sought injunctive relief to
vindicate their right of referendum and to put the ordinance on
the ballot, they would have suffered the deprivation of a
substantive right under the Civil Rights Act, but because they
succeeded in securing judicial relief they are now “perversely
penalized” by the denial of attorney’s fees. This strained
interpretation of the Civil Rights Act, plaintiffs suggest, will
not further the goal of encouraging lawyers to undertake cases
that will vindicate the rights of clients who otherwise cannot
afford the high cost of access to the civil justice system. The
11
award of attorney’s fees, plaintiffs maintain, is the inducement
to take these difficult and costly cases.
Echoing this position, amicus curiae ACLU insists that the
New Jersey Civil Rights Act, like other fee-shifting statutes,
is “‘designed to attract competent counsel’” to represent
“‘plaintiffs with bona fide claims’” of “‘infringement of
statutory rights,’” (quoting Coleman v. Fiore Bros., 113 N.J.
594, 598 (1989)). Here, according to the ACLU, plaintiffs were
the prevailing party under N.J.S.A. 10:6-2(f) because they
obtained an enforceable judgment on the merits -- a result that
would entitle them to attorney’s fees under 42 U.S.C.A. § 1983
and § 1988, (citing Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 604, 121 S. Ct.
1835, 1840, 149 L. Ed. 2d 855, 863 (2001)). The ACLU explains
that to conclude, as did the Appellate Division, that injunctive
relief erased the deprivation that occurred in this case will
“eviscerate any claim to attorney’s fees under any
circumstances.” Simply put, the ACLU submits that “[t]he
clerk’s refusal to place the referendum on the ballot was itself
the deprivation of a right” requiring the award of attorney’s
fees.
B.
Defendants City Clerk and City of Hoboken argue that
plaintiffs’ claim is moot because plaintiffs received all the
12
judicial relief to which they were entitled -- a vote on the
ordinance -- and therefore “the Appellate Division had no
warrant to reach out and decide the underlying issues.”
Defendants also maintain that the Appellate Division erred in
its interpretation of N.J.S.A. 40:69A-185 of the Faulkner Act by
concluding that the City Clerk did not have the right to reject
“a facially defective petition.” Defendants urge this Court to
give the language of N.J.S.A. 40:69A-185 a “natural reading”
that would allow the City Clerk to make the sensible decision to
refuse to accept a referendum petition that does not have the
minimum number of signatures on the face of the petition. In
defendants’ view, a facially defective petition should not
trigger the referendum process and therefore the Clerk’s actions
were not “a clear abuse of discretion.”
Amici curiae League of Municipalities and Institution of
Local Government Attorneys, in a joint brief, urge this Court to
narrowly construe the protections of the New Jersey Civil Rights
Act, which provides relief to “[a]ny person who has been
deprived of . . . any substantive rights . . . secured by the
Constitution or laws of this State,” N.J.S.A. 10:6-2(c)
(emphasis added). They concede that an expansive reading of the
Act “would be in line with the federal Civil Rights Act,” 42
U.S.C.A. § 1983. They, however, believe that such a reading “is
not supported by the Legislative history of [the New Jersey
13
Civil Rights Act]” and would “be detrimental to the
municipalities and taxpayers of this State.” They ask this
Court to interpret the Act as applying only to the “subset of
laws which protect against the deprivation of civil liberties
and not the general laws of New Jersey.” In their view, the
Faulkner Act “does not create a statutorily enforceable right”
under the Civil Rights Act, and “[a]n action in lieu of
prerogative writ[] is an enforcement mechanism that displaces
the [Act].”
IV.
The Court must address two issues: whether the City Clerk
violated the referendum provisions of the Faulkner Act by
refusing to file a petition, which on its face lacked signatures
of fifteen percent of the number of voters who cast ballots for
members of the General Assembly in Hoboken in 2009, and, if so,
whether the City Clerk deprived plaintiffs of a substantive
statutory right protected by the New Jersey Civil Rights Act,
thus entitling them to attorney’s fees.
Defendants initially argue that the issues before this
Court are moot because the ordinance challenged in the
referendum petition was put to a vote. The mootness argument
fails because plaintiffs still contend that they are entitled to
attorney’s fees as the prevailing party on their civil-rights
14
claim, see N.J.S.A. 10:6-2(f), despite the placement of the
ordinance on the ballot. See Transamerica Ins. Co. v. Nat’l
Roofing, Inc., 108 N.J. 59, 64 (1987) (noting that a matter is
moot when there is no issue left to adjudicate). To succeed as
a prevailing party, plaintiffs must show that the right of
referendum is a substantive right guaranteed by the Faulkner Act
and that they were deprived of that right by the City Clerk in
contravention of the Civil Rights Act. At present, defendants
challenge the trial court and Appellate Division’s finding of a
Faulkner Act violation, and plaintiffs challenge the Appellate
Division’s finding that they were not deprived of a substantive
right under the Civil Rights Act. Plaintiffs’ claim to
attorney’s fees keeps both issues alive and in controversy,
regardless of the vote on the ordinance.
V.
Before discussing the referendum provisions of the Faulkner
Act, N.J.S.A. 40:69A-185 to -192, and the New Jersey Civil
Rights Act, N.J.S.A. 10:6-1 to -2, a historical perspective of
how the right to referendum came into being will inform our
analysis.
In 1911, Governor Woodrow Wilson signed into law the Walsh
Act, currently N.J.S.A. 40:70-1 to :76-27, the first New Jersey
municipal charter law to give voters the power of initiative and
15
referendum. Office of Legislative Services, Background Report:
Initiative and Referendum in New Jersey’s Counties and
Municipalities 4 (Oct. 12, 2007) [hereinafter Initiative and
Referendum], available at
http://cityofatlantic.files.wordpress.com/2010/01/ir_counties_mu
nicipalities.pdf.3 The Walsh Act not only created a new form of
municipal governance, it also permitted a referendum on an
ordinance if within ten days of the ordinance’s passage “a
petition signed by electors of the city equal in number to at
least fifteen per centum of the entire vote cast at the last
preceding general municipal election be presented to the board
of commissions.” L. 1911 c. 221 § 15. In calling for the law’s
passage, Governor Wilson explained that the referendum and its
sister provisions, the initiative and recall, were “measures
which enable the people to correct the mistake of their
Governors.” Makes Appeal to Lawmakers, Newark Evening News,
Apr. 11, 1911, at 4. Governor Wilson considered the referendum
one of “the safeguard[s] of politics. It takes power from the
boss and places it in the hands of the people.” Burton J.
Hendrick, The Initiative and Referendum and How Oregon Got Them,
37 McClure’s Magazine 235, 235 (1911). Indeed, despite their
attempts, the “machine bosses” in New Jersey were unsuccessful
3
The New Jersey Constitution does not guarantee a right of
referendum.
16
in stripping the referendum, initiative, and recall provisions
from the Walsh Act. Machine Bosses Join to Defeat Commission
Act, Trenton Evening Times, Apr. 5, 1911, at 1.
New Jersey’s initiative and referendum were the product of
a larger movement that had been sweeping the country during the
Progressive Era of the late Nineteenth and early Twentieth
Centuries. K.K. DuVivier, Out of the Bottle: The Genie of
Direct Democracy, 70 Alb. L. Rev. 1045, 1045 (2007). Reformers
proposed the referendum as a democratic antidote against
special-interest control of the legislative process. Benjamin
Parke De Witt, The Progressive Movement 214 (1915). Indeed,
many perceived that “state legislatures were no longer
representative of the people, but were under the dominance of
political rings and the moneyed interests.” Cyclopedia of
American Government 179 (Andrew C. McLaughlin ed., 1914).
In California, for example, the Southern Pacific Railroad
Company, at the end of the Nineteenth Century, was accused of
“attempting to name and control virtually every candidate for
every political office from governor on down.” Spencer C. Olin,
Jr., California’s Prodigal Sons 2 (1968). “[T]o wrest control
of the political process from private interests,” California
adopted a constitutional amendment authorizing initiatives and
referendums in 1911. James E. Castello, Comment, The Limits of
17
Popular Sovereignty: Using the Initiative Power to Control
Legislative Procedure, 74 Calif. L. Rev. 491, 502–03 (1986).
Thus, the referendum in New Jersey, as elsewhere, was deemed “an
exercise in democracy . . . affording the people the last word
if they choose to take a stand against the wisdom of an
ordinance that the government has enacted.” In re Petition for
Referendum on City of Trenton Ordinance 09-02, 201 N.J. 349, 352
(2010).
Between 1911 and 1950, over sixty municipalities, including
Hoboken, adopted the commission form of government, giving over
forty percent of the State’s population the right to petition
for a referendum. State Comm. on Cnty. & Mun. Gov’t, Modern
Forms of Municipal Government 49–50 (May 1992). In 1950, the
Legislature passed the Faulkner Act, L. 1950, c. 210, which
allowed for new forms of municipal governance. Citizens in
municipalities organized under the Faulkner Act, such as
Hoboken, are granted the power of referendum and initiative.
N.J.S.A. 40:69A-184, -185. Through the Walsh Act, the Faulkner
Act, and special town charters, a majority of New Jersey’s
population may now engage in the referendum process, Initiative
and Referendum, supra, at 4, allowing citizens “the right to
test a challenged ordinance in the crucible of the democratic
process,” In re Ordinance 04-75, supra, 192 N.J. at 450.
18
VI.
A.
Our primary role here is one of statutory interpretation,
construing various provisions of the Faulkner Act, N.J.S.A.
40:69A-185 to -192, and the New Jersey Civil Rights Act,
N.J.S.A. 10:6-2(c) and (f). Our review of a statutory scheme is
de novo; we owe no deference to the interpretative conclusions
reached by either the trial court or Appellate Division.
Farmers Mut. Fire Ins. Co. v. N.J. Prop.-Liab. Ins. Guar. Ass’n,
215 N.J. 522, 535 (2013).
In construing any statute, we must give words “their
ordinary meaning and significance,” recognizing that generally
the statutory language is “the best indicator of [the
Legislature’s] intent.” DiProspero v. Penn, 183 N.J. 477, 492
(2005) (citations omitted); see also N.J.S.A. 1:1-1 (stating
that customarily “words and phrases shall be read and construed
with their context, and shall . . . be given their generally
accepted meaning”). Each statutory provision must be viewed not
in isolation but “in relation to other constituent parts so that
a sensible meaning may be given to the whole of the legislative
scheme.” Wilson ex rel. Manzano v. City of Jersey City, 209
N.J. 558, 572 (2012) (citing Kimmelman v. Henkels & McCoy, Inc.,
108 N.J. 123, 129 (1987)). We will not presume that the
Legislature intended a result different from what is indicated
19
by the plain language or add a qualification to a statute that
the Legislature chose to omit. DiProspero, supra, 183 N.J. at
493.
On the other hand, if a plain reading of the statutory
language is ambiguous, suggesting “more than one plausible
interpretation,” or leads to an absurd result, then we may look
to extrinsic evidence, such as legislative history, committee
reports, and contemporaneous construction in search of the
Legislature’s intent. Id. at 492–93 (citing Cherry Hill Manor
Assocs. v. Faugno, 182 N.J. 64, 75 (2004); Hubbard ex rel.
Hubbard v. Reed, 168 N.J. 387, 392-93 (2001)). Last, in keeping
with our previous directives, “the referendum statute in the
Faulkner Act should be liberally construed” for the purpose of
“promot[ing] the ‘beneficial effects’” of voter participation.
In re Ordinance 04-75, supra, 192 N.J. at 459 (quoting Retz v.
Mayor & Council of Saddle Brook, 69 N.J. 563, 571 (1976)).
With those legal principles in mind, we turn to the
relevant statutes.
B.
Our first task is to determine whether the City Clerk
violated the Faulkner Act, N.J.S.A. 40:69A-185 to -192, by not
filing plaintiffs’ referendum petition. If the Clerk violated
that Act, our next task is to decide whether the right of
referendum is a substantive right under the New Jersey Civil
20
Rights Act, N.J.S.A. 10:6-2(c). We begin with the relevant
provisions of the Faulkner Act.
N.J.S.A. 40:69A-185 provides that the voters of Faulkner
Act municipalities shall “have the power of referendum which is
the power to approve or reject at the polls any ordinance”
passed by the council. Generally, “[n]o ordinance passed by the
municipal council” takes effect before twenty days after its
approval. Ibid. In this case that approval occurred when the
mayor signed the ordinance into law. Those challenging an
ordinance through a referendum petition have two opportunities
to garner a sufficient number of lawful signatures to place an
ordinance on the ballot. N.J.S.A. 40:69A-185 to -188. The
first opportunity is during the twenty-day period before the
ordinance takes effect. N.J.S.A. 40:69A-185. If the initial
petition does not have the requisite number of lawful signatures
as determined by the municipal clerk, then the challengers have
ten days to file a supplemental petition with a sufficient
number of lawful signatures to meet the statutory threshold.
N.J.S.A. 40:69A-187, -188.
With that overview, we now examine the statutes at issue.
If, within the twenty-day grace period before the ordinance
takes effect,
a petition protesting against the passage of
such ordinance shall be filed with the
municipal clerk and if the petition shall be
21
signed by a number of the legal voters of
the municipality equal in number to at least
15% of the total votes cast in the
municipality at the last election at which
members of the General Assembly were
elected, the ordinance shall be suspended
from taking effect until proceedings are had
as herein provided.
[N.J.S.A. 40:69A-185 (emphasis added).]
The requirement that the petition “shall be filed with the
municipal clerk” imposes on plaintiffs the duty to deliver the
documents challenging the ordinance. Nothing in the statute
suggests that the City Clerk can refuse to accept the petition
for filing. Had the statute’s drafters intended a different
result, the provision would read that the petition “shall be
filed by the municipal clerk.” This construction of N.J.S.A.
40:69A-185 conforms with other provisions in the statutory
scheme. For example, N.J.S.A. 40:69A-189 provides that “[u]pon
the filing of a referendum petition with the municipal clerk,
the ordinance shall be suspended until ten days following a
finding by the municipal clerk that the petition is
insufficient.” (Emphasis added). Thus, the filing of the
petition with the Clerk triggers an inquiry into the adequacy of
the petition.
The requirement that “the petition shall be signed” by the
requisite number of “legal voters” based on “the total votes
cast in the municipality at the last” General Assembly election
22
necessitates that the Clerk investigate and determine two
significant matters. One is the actual number of votes cast in
the last General Assembly election. Here, the Hudson County
Clerk informed plaintiffs of the wrong election year, and the
Hoboken City Clerk provided plaintiffs with two different vote
counts for the right election year. The potential that the
initial petition might not conform to the dictates of various
statutes of the Faulkner Act is one apparent reason that the
statutory scheme permits the challengers to file a supplemental
petition. That is why the statute provides that “the ordinance
shall be suspended until ten days following a finding by the
municipal clerk that the petition is insufficient,” N.J.S.A.
40:69A-189.
Second, the Clerk also must verify that only “legal voters”
placed their signatures on the petition, N.J.S.A. 40:69A-185,
and that the petition is in the form prescribed by N.J.S.A.
40:69A-186 to -187. N.J.S.A. 40:69A-187 specifically provides
that “[w]ithin twenty days after a petition is filed, the
municipal clerk shall determine whether each paper of the
petition has a proper statement of the circulator and whether
the petition is signed by a sufficient number of qualified
voters.” That inquiry -- after the filing of the petition --
may lead the Clerk to disallow a certain number of signatures or
identify some other defect. The Clerk is required, if he finds
23
“that the petition is insufficient,” to “set forth in [a]
certificate the particulars in which it is defective and shall
at once notify at least two members of the Committee of the
Petitioners of his findings.” N.J.S.A. 40:69A-187. The Clerk’s
deficiency findings may necessitate a supplemental petition, as
was evident in this case. See N.J.S.A. 40:69A-186 to -190.
Last, if the Clerk finds that either the initial or
supplemental petition “filed with him in accordance with [the
Faulkner Act] is sufficient, the clerk shall submit the same to
the municipal council without delay.” N.J.S.A. 40:69A-190. In
that event, the municipal council first has the opportunity “to
repeal [the] ordinance as requested by a referendum petition.”
N.J.S.A. 40:69A-191. If the council fails to do so, “the
municipal clerk shall submit the ordinance to the voters.”
Ibid.
C.
We conclude that the various intersecting statutes
contemplate a two-step process for validating a referendum
petition. If the initial petition is found insufficient, then a
corrective, supplemental petition may be filed. The statutory
scheme does not indicate that one kind of deficiency in an
initial petition empowers the Clerk to refuse to file the
petition and to forgo giving the “particulars in which [the
petition] is defective.” See N.J.S.A. 40:69A-187. Thus the
24
failure to attach to the petition the requisite number of
signatures is treated no differently under the Faulkner Act than
attaching to the petition a large number of signatures of
unqualified voters. No one suggests that once the requisite
number of signatures is appended to the petition that a
supplemental petition could not be filed even if many signatures
were determined to come from unqualified voters.4 The committee
of petitioners has but one opportunity, for whatever reason, to
correct the defects in the petition.
As we have seen in this case, the source of an error may
even be a government agency. In this case, the Hudson County
Clerk gave plaintiffs the wrong election year from which to make
the voter-count calculation. The City Clerk provided
plaintiffs, in two separate letters, with conflicting figures on
the number of votes cast in Hoboken, and the discrepancy
amounted to a difference of more than fourteen hundred votes.
The Clerk’s second letter indicated that his office had reviewed
“Hudson County documents” in determining the number of votes
cast in Hoboken. It appears that even vote counts may not be
self-evident.
The supplemental petition allows the referendum proponents
to file a petition conforming with the statutory scheme,
4
We do not address here a case in which a committee of
petitioners has submitted in bad faith a willfully non-compliant
petition. That case is not before us.
25
regardless of the reasons that made the initial petition
deficient. When 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.
We are in agreement with the trial court and Appellate
Division: the Hoboken City Clerk violated the terms of the
Faulkner Act by rejecting plaintiffs’ petition as filed.
VII.
A.
We next must determine whether the City Clerk’s refusal to
file or certify the referendum petition constitutes a
deprivation of “any substantive rights . . . secured by the
Constitution or laws of this State,” entitling plaintiffs to
relief under the New Jersey Civil Rights Act. N.J.S.A. 10:6-
2(c). Therefore, we must decide whether the people’s “power to
approve or reject at the polls any ordinance” through the
referendum process, as guaranteed in N.J.S.A. 40:69A-185, is a
substantive right protected by N.J.S.A. 10:6-2.
We start, as we must, with the plain language of the
relevant provisions of the Civil Rights Act. N.J.S.A. 10:6-2(c)
provides:
26
Any person who has been deprived of . . .
any substantive rights, privileges or
immunities secured by the Constitution or
laws of this State, or whose exercise or
enjoyment of those substantive rights,
privileges or immunities has been interfered
with or attempted to be interfered with, by
threats, intimidation or coercion by a
person acting under color of law, may bring
a civil action for damages and for
injunctive or other appropriate relief.
In addition to the relief enumerated above, a “court may award
the prevailing party reasonable attorney’s fees and costs.”
N.J.S.A. 10:6-2(f).
Although N.J.S.A. 10:6-2(c) provides relief for either the
deprivation of a statutory substantive right or the interference
with such a right “by threats, intimidation or coercion,” no one
contends that the Clerk engaged in “threats, intimidation or
coercion” in refusing to file the referendum petition.
Therefore, plaintiffs cannot look to the interference portion of
this statute for relief. Their claim under the Civil Rights Act
must rise or fall on whether the Clerk deprived them of a
substantive right.
To establish a violation of the Civil Rights Act in this
case, plaintiffs must prove that (1) “the Constitution or laws
of this State” conferred on them a substantive right; (2) the
City Clerk deprived them of that right; and (3) the Clerk was
“acting under color of law” when he did so. N.J.S.A. 10:6-2(c).
No one disputes that the Clerk was acting in his official
27
capacity and therefore under color of law when he rejected
plaintiffs’ referendum petition. Therefore, we must examine two
specific issues: whether “the power of referendum” granted to
the people by the Faulkner Act constitutes a substantive right
and, if so, whether the City Clerk deprived plaintiffs of that
right.
B.
The Civil Rights Act does not define substantive right, nor
is the term self-explanatory. By its very nature, the term is
broad in its conception. Although the Act’s sparse legislative
history sheds little light on the precise meaning of the term,
it does give a sense of the intended scope of the Act. The
Senate Judiciary Committee Statement appended to the proposed
legislation explains that the Civil Rights Act is intended to
“provide the citizens of New Jersey with a State remedy for
deprivation of or interference with the civil rights of an
individual.” S. Judiciary Comm. Statement to S. No. 1558, 211th
Leg. 1 (May 6, 2004). The Act was expected to fill “potential
gaps which may exist under remedies currently provided by New
Jersey’s ‘Law Against Discrimination,’ N.J.S.A. 10:5-1 et seq.,
and the law authorizing a civil cause of action for bias crime
victims, N.J.S.A. 2A:53A-21.” Ibid.
Defendants maintain that, based on that brief legislative
statement, the Act should be limited to civil rights cases
28
involving discrimination. That interpretation, however, is at
complete odds with the broadly worded language of the Act. If
the Legislature intended to limit the substantive rights
protected by the Act to only those involving discrimination, it
undoubtedly would have said so. See DiProspero, supra, 183 N.J.
at 493. Moreover, the “gap-filling” could not have been for the
purpose of plugging holes in the Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -49, which is a comprehensive
statutory scheme providing virtually the same remedies offered
by the Civil Rights Act. Rather, the “gap-filling” language
implies that the Legislature intended to expand the remedies
already provided to victims of bias and discrimination under LAD
to citizens whose other substantive rights were not adequately
protected under existing law.
Importantly, the meager legislative history tells us that
our State Civil Rights Act is modeled off of the analogous
Federal Civil Rights Act, 42 U.S.C.A. § 1983, and is intended to
provide what Section 1983 does not: a remedy for the violation
of substantive rights found in our State Constitution and laws.
S. Judiciary Comm. Statement to S. No. 1558, supra; Press
Release, Office of the Governor, Governor’s Statement Upon
Signing Assembly Bill 2073 (Sept. 10, 2004).
The interpretation given to parallel provisions of Section
1983 may provide guidance in construing our Civil Rights Act.
29
See Garrison v. Twp. of Middletown, 154 N.J. 282, 289 (1998)
(noting that interpretation of California Tort Claims Act may be
used as guide in construing similar New Jersey Tort Claims Act
provisions).
C.
Section 1983, in relevant part, provides that any person
who, under color of law, deprives another person “of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.” 42 U.S.C.A.
§ 1983. The “prevailing party” in a Section 1983 action may be
awarded “a reasonable attorney’s fee” as well as costs. 42
U.S.C.A. § 1988(b).
Section 1983 is not itself a source of substantive rights,
but rather a vehicle by which rights conferred by the Federal
Constitution and federal laws may be vindicated. Chapman v.
Houston Welfare Rights Org., 441 U.S. 600, 617-18, 99 S. Ct.
1905, 1916, 60 L. Ed. 2d 508, 522–23 (1979); Baker v. McCollan,
443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d
433, 442 n.3 (1979). Section 1983 protects against the
violation of federal rights, not federal laws. Blessing v.
Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359, 137 L. Ed.
2d 569, 582 (1997).
30
A statute does not give rise to a right under Section 1983
unless a plaintiff can satisfy three factors. A plaintiff must
show that (1) Congress intended the statute to “benefit the
plaintiff”; (2) “the right assertedly protected by the statute
is not so ‘vague and amorphous’ that its enforcement would
strain judicial competence”; and (3) “the statute must
unambiguously impose a binding obligation on the States.” Id.
at 340–41, 117 S. Ct. at 1359, 137 L. Ed. 2d at 582 (citations
omitted).
“Even if a plaintiff demonstrates that a federal statute
creates an individual right, there is only a rebuttable
presumption that the right is enforceable under § 1983.” Id. at
341, 117 S. Ct. at 1360, 137 L. Ed. 2d at 582. That is because
Congress may “‘specifically foreclose[] a remedy under § 1983’”
either expressly “or impliedly, by creating a comprehensive
enforcement scheme that is incompatible with individual
enforcement under § 1983.” Ibid. (citations omitted).
Congress’s intent is the crucial consideration in determining
whether a statute precludes an action under Section 1983.
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 252, 129 S.
Ct. 788, 793–94, 172 L. Ed. 2d. 582, 590 (2009).
Significantly, in the three cases in which the United
States Supreme Court found that federal statutory schemes
precluded claims under Section 1983, “the statutes at issue
31
required plaintiffs to comply with particular procedures and/or
to exhaust particular administrative remedies prior to filing
suit.” Id. at 254, 129 S. Ct. at 795, 172 L. Ed. 2d at 592
(citing Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers
Ass’n, 453 U.S. 1, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981);
Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d
746 (1984); City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,
125 S. Ct. 1453, 161 L. Ed. 2d 316 (2005)).
In contrast, in Fitzgerald, supra, the Supreme Court
permitted plaintiffs to proceed with a Section 1983 lawsuit
alleging gender discrimination in violation of the Fourteenth
Amendment’s Equal Protection Clause and Title IX, 20 U.S.C.A. §
1681(a), despite available remedies solely under Title IX. 555
U.S. at 248–49, 129 S. Ct. at 792, 172 L. Ed. 2d. at 588. The
Court conclude[d] “that Title IX was not meant to be an
exclusive mechanism for addressing gender discrimination in
schools, or a substitute for § 1983 suits as a means of
enforcing constitutional rights.” Id. at 258, 129 S. Ct. at
797, 172 L. Ed. 2d at 594. The Court reasoned that the Equal
Protection Clause provided “divergent coverage” from Title IX
and that Title IX did not present the type of “comprehensive
remedial scheme” inimical to a Section 1983 action. Ibid.
D.
32
Our state Civil Rights Act is of recent origin. Although
the issues that arise over its interpretation are new to us, we
have the benefit of an established line of jurisprudence
construing its sister provision, Section 1983. To determine
whether our State Constitution or state law confers a
substantive right on a class of individuals in any particular
case, we will apply the test developed by the United States
Supreme Court in Blessing, supra. We find that approach
sensible and adaptable to our Civil Rights Act. In accord with
the Blessing test, even if we find that a statute confers a
right, we still must determine whether the Legislature did not
intend remedies of our Civil Rights Act to supplant those of
other statutes.
We note two distinct differences between Section 1983 and
our Civil Rights Act. First, our Act protects against the
deprivation of and interference with “substantive rights,
privileges or immunities secured by the Constitution or laws of
this State,” N.J.S.A. 10:6-2(c) (emphasis added), whereas
Section 1983 protects against “the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,”
42 U.S.C.A. § 1983 (emphasis added). Thus, Section 1983
provides remedies for the deprivation of both procedural and
substantive rights while N.J.S.A. 10:6-2(c) provides remedies
33
only for the violation of substantive rights. That difference
must be entered into the equation in applying the Blessing test.
Second, Section 1983 was the product of the Federal Civil
Rights Act of 1871, c. 22, § 1, 17 Stat. 13, 13. In applying
the Blessing test, the United States Supreme Court has analyzed
whether Congress intended a statute enacted after 1871 to
foreclose the available remedies of Section 1983. See
Fitzgerald, supra, 555 U.S. at 253, 129 S. Ct. at 794, 172 L.
Ed. 2d. at 591. Here, because the New Jersey Civil Rights Act
is of recent vintage, we must determine whether the Legislature
did not intend N.J.S.A. 10:6-2(c) to provide remedies in
addition to those in previously enacted statutes or the common
law.
E.
In determining whether the referendum provisions of the
Faulkner Act confer a substantive right on plaintiffs, and their
third-party beneficiaries (the voters of Hoboken), we will apply
the following test: plaintiffs must establish that (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
34
Hoboken. Cf. Blessing, supra, 520 U.S. at 340–41, 117 S. Ct. at
1359, 137 L. Ed. 2d at 582.
Initially, we have no difficulty concluding that the “power
of referendum” is a right under that test. The declaration that
“[t]he voters shall also have the power of referendum,” N.J.S.A.
40:69A-185, makes clear that the benefit conferred is not only
to plaintiffs, but to the entire class of voters in Hoboken.
The right to challenge an ordinance is spelled out in minute
detail in N.J.S.A. 40:69A-185 to -196. Moreover, this is not
the enforcement of an amorphous statute that strains judicial
competence. Last, the Faulkner Act unmistakably imposes a
binding obligation on the Hoboken City Clerk to accept for
filing a referendum petition, N.J.S.A. 40:69A-185, to certify
the petition if it meets the statutory criteria, N.J.S.A.
40:69A-187, and to place the challenged ordinance before the
voters, N.J.S.A. 40:69A-191.
In addition, plaintiffs must show that the right is
substantive, not procedural. “Substantive” addresses those
rights and duties that may give rise to a cause of action, see
Brown & Root Indus. Serv. v. Indus. Comm’n, 947 P.2d 671, 675
(Utah 1997), whereas “procedural” addresses “the manner and the
means” by which those rights and duties are enforced, Shady
Grove Orthopedics Assocs. v. Allstate Ins. Co., 559 U.S. 393,
407, 130 S. Ct. 1431, 1442, 176 L. Ed. 2d 311, 323 (2010). The
35
City Clerk’s failure to file the referendum petition to allow a
vote on the ordinance gave rise to a cause of action. Thus, by
definition, the right of referendum is substantive in nature.
The only remaining question is whether the Legislature in
passing the New Jersey Civil Rights Act either expressly or
impliedly did not intend the Act’s remedies to apply to long-
established actions in lieu of prerogative writ -- mandamus
actions -- to compel an official to enforce the Faulkner Act’s
right of referendum. Because plaintiffs have satisfied the
three-factor Blessing test, defendants must now show that the
enforcement of rights under the New Jersey Civil Rights Act is
incompatible with the Faulkner Act. Defendants have not carried
that burden.
Nothing in the broad-based language of the Civil Rights Act
remotely suggests that the drafters did not intend its remedies
to apply to enforcement of the right of referendum. Had the
Legislature intended to carve out this statutory area,
presumably the Legislature would have said so. See DiProspero,
supra, 183 N.J. at 493. Application of the Civil Rights Act in
this case is not in any way antithetical to the goals of the
Faulkner Act. Indeed, the attorney’s fees provision of the
Civil Rights Act makes the two legislative schemes
complementary.
36
One of the most powerful remedies of the New Jersey Civil
Rights Act is the award of attorney’s fees to a prevailing
party. See N.J.S.A. 10:6-2(f). This fee-shifting provision is
a mirror of its federal Section 1988 counterpart. When Congress
enacted Section 1988 to allow a prevailing party to receive an
award in a Section 1983 action, it did so because “the private
market for legal services failed to provide many victims of
civil rights violations with effective access to the judicial
process.” Riverside v. Rivera, 477 U.S. 561, 576, 106 S. Ct.
2686, 2695, 91 L. Ed. 2d 466, 481 (1986) (citing H.R. Rep. No.
94-1558, at 3 (1976)). Congress recognized that those seeking
to vindicate their civil rights often “cannot afford to purchase
legal services at the rates set by the private market,” ibid.
(citations omitted), and passed Section 1988 “to ensure that
lawyers would be willing to represent persons with legitimate
civil rights grievances.” Id. at 578, 106 S. Ct. at 2696, 91 L.
Ed. 2d at 482. Our State Legislature, evidently, had the same
motivation in enacting N.J.S.A. 10:6-2(f).
We have spoken of the Legislature’s purpose in awarding
attorney’s fees to successful litigants in cases arising under
the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. There, the
Legislature intended the “counsel-fees provision . . . to
provide a financial incentive for members of the bar to become
‘private attorneys general,’” thus ensuring that “[t]he poor and
37
powerless benefit from the guiding hand of counsel.” Gonzalez
v. Wilshire Credit Corp., 207 N.J. 557, 585 (2011) (internal
quotation marks omitted) (quoting Lemelledo v. Beneficial Mgmt.
Corp., 150 N.J. 255, 268 (1997)). The Legislature could have
had no less a purpose in passing the Civil Rights Act.
In the present case, before passage of the Civil Rights
Act, plaintiffs could seek to compel the City Clerk by judicial
action to process a referendum through an action in lieu of
prerogative writ. But it might seem unlikely that average
citizens looking to participate in the democratic process could
afford to litigate to enforce their substantive right of
referendum. Success in such an action usually does not afford
money damages. With the attorney’s fees provision of N.J.S.A.
10:6-2(f), citizens thwarted by official action denying them the
benefit of a substantive statutory right have the ability to
attract competent counsel.
It is true that a municipality’s violation of citizens’
substantive civil rights will impose some financial burden on
it, as suggested by amici curiae League of Municipalities and
Institution of Local Government Attorneys. But that is a policy
decision resolved by the Legislature when it passed the Civil
Rights Act.
The New Jersey Civil Rights Act was intended to apply to
cases, such as this one, where a citizen deprived of a
38
substantive right, could not otherwise afford to retain counsel.
In essence, the right of referendum is about enfranchisement,
about self-government, and about giving citizens the right to
vote on matters of importance to their community. As earlier
described, the referendum took root in an era when citizens
protested about the outsized influence of special interests in
the legislative process. As Governor Wilson said around the
time of the enactment of New Jersey’s first referendum statute:
the referendum is one of “‘the safeguard[s] of politics,’”
Hendrick, supra, at 235; it “‘enable[s] the people to correct
the mistake of their Governors,’” Makes Appeal to Lawmakers,
supra.
The referendum is direct democracy in its purest sense,
allowing citizens to take an appeal above the heads of their
elected officials and directly to the voters who can then
approve or reject an ordinance at the polls. See In re Trenton
Ordinance 09-02, supra, 201 N.J. at 353 (stating that referendum
power “is an exercise in democracy that profoundly affects the
relationship between the citizens and their government by
affording the people the last word if they choose to take a
stand against the wisdom of an ordinance that the government has
enacted”).
39
In short, we conclude that the Faulkner Act confers a
substantive right of referendum protected by the New Jersey
Civil Rights Act.
VIII.
A.
The final question we must resolve is whether the Hoboken
City Clerk deprived plaintiffs of their substantive right of
referendum under the Faulkner Act. Defendants contend that
because plaintiffs succeeded in compelling the Clerk to process
the referendum petition and place the ordinance on the ballot,
they were not deprived of their substantive right of referendum.
On the other hand, plaintiffs submit that when the Clerk refused
to file the petition, the deprivation was complete.
We reject defendants’ position for a number of reasons.
First, although neither the Civil Rights Act nor its legislative
history defines the word “deprivation,” it does have a common
understanding. Deprive or deprivation has been defined as “[a]n
act of taking away,” and “[a] withholding of something,” Black’s
Law Dictionary 507 (9th ed. 2009), and “[t]o keep from having or
enjoying,” Webster’s II New College Dictionary 305 (2001).
Certainly, before plaintiffs secured judicial relief, the
Clerk’s refusal to file their referendum petition took away,
withheld, and kept plaintiffs from enjoying their right of
40
referendum. That the Law Division later provided a judicial
remedy by compelling the Clerk to abide by the Faulkner Act and
process the referendum petition does not alter the nature of the
Clerk’s earlier act, which deprived plaintiffs of a statutory
right.
This result is supported by a long line of federal cases in
Section 1983 actions. By its very words, Section 1983
implicates only cases involving the deprivation of a plaintiff’s
statutory or constitutional right. Under Section 1983, federal
courts have found that a plaintiff is deprived of a right at the
point a government official denies a plaintiff a permit or other
authorization to exercise a right, even though judicial relief
is later secured and the plaintiff freely exercises the right
without any interruption. Judicial relief does not extinguish
the earlier deprivation.
For example, when municipal officials in Wichita, Kansas,
denied an anti-abortion group a permit to conduct a protest
parade, the United States Court of Appeals for the Tenth Circuit
found that the plaintiffs were deprived of their First Amendment
rights under Section 1983, despite the District Court’s entry of
an order that allowed the parade to go forward without
interruption. Lippoldt v. Cole, 468 F.3d 1204, 1210–11, 1220
(10th Cir. 2006). The Tenth Circuit concluded that the
plaintiffs “suffered injury by the alleged abridgement of their
41
First Amendment rights when the City denied the parade permits.”
Id. at 1217. Under those circumstances, the plaintiffs were the
prevailing party, entitling them to attorney’s fees. Id. at
1222-24. In short, protesters who receive “an injunction to
exercise their First Amendment rights at a specific time and
place -- say to demonstrate at a Saturday parade” are prevailing
parties because they have secured “all the court-ordered relief
they need.” McQueary v. Conway, 614 F.3d 591, 599 (6th Cir.
2010), cert. denied, 562 U.S. ___, 131 S. Ct. 927, 178 L. Ed. 2d
752 (2011).
Federal courts in Section 1983 actions apparently do not
trouble themselves over whether injunctive relief overturning
government action is premised on remedying the deprivation of a
right that already occurred or on remedying the anticipated
deprivation of a right. See, e.g., People Against Police
Violence v. City of Pittsburgh, 520 F.3d 226, 229 (3d Cir. 2008)
(holding plaintiffs entitled to attorney’s fees in Section 1983
action where district court directed city to provide parade
permit and parade occurred as originally planned); Young v. City
of Chicago, 202 F.3d 1000, 1000–01 (7th Cir. 2000) (holding
plaintiff protestors entitled to attorney’s fees in Section 1983
action where district court directed city to allow protest to
proceed as planned outside of Democratic National Convention);
see also Rogers Grp., Inc. v. City of Fayetteville, 683 F.3d
42
903, 905–06, 911–13 (8th Cir. 2012) (holding plaintiff entitled
to attorney’s fees in Section 1983 action where district court
enjoined ordinance -- before enforcement date -- that would have
resulted in unconstitutional taking of property).
The principle established in these federal cases is that a
plaintiff is entitled to relief for Section 1983 purposes when a
government official blocks access to a right -- e.g., the right
to assemble or protest or vote -- before judicial intervention.
That a court comes to a plaintiff’s rescue does not alter the
nature of the earlier governmental deprivation or anticipated
deprivation.
The dissent basically asserts that because plaintiffs
sought and received immediate judicial relief, plaintiffs lost
their right to file a civil-rights action. If we accepted that
view, the statute would reward inaction and penalize success.
This perverse disincentive is precisely what the Legislature
could not have had in mind in encouraging the vindication of a
right deprived by a public official. Moreover, the dissent’s
examples in which a deprivation of a right occurred do not
exhaust the myriad scenarios in which a deprivation can occur.
Post at ___ (slip op at 8–12).
A plaintiff deprived of a civil right is a prevailing party
in a Section 1983 action “when actual relief on the merits of
his claim materially alters the legal relationship between the
43
parties by modifying the defendant’s behavior in a way that
directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S.
103, 111-12, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494, 503 (1992).
An injunction “will usually satisfy that test.” Lefemine v.
Wideman, 568 U.S. ___, ___, 133 S. Ct. 9, 11, 184 L. Ed. 2d 313,
316 (2012).
A case that makes this point in a voting-rights setting is
Diffenderfer v. Gomez-Colon, 587 F.3d 445 (1st Cir. 2009). In
that case, the plaintiffs, a class of English-speaking residents
of Puerto Rico, filed a Section 1983 action challenging a
decision of the Electoral Commission of Puerto Rico to print
ballots only in Spanish for the November 2008 election. Id. at
449. The federal district court held that “relief was warranted
on the grounds that the Commission’s balloting policy violated
the Voting Rights Act, the First Amendment, and the Equal
Protection Clause of the Fourteenth Amendment.” Ibid.
Accordingly, the district court issued an “injunction directing
the Commission to immediately begin printing bilingual ballots
for use in the November 2008 elections.” Ibid. Afterward,
before appeals were heard challenging the district court’s
ruling, Puerto Rico enacted a law mandating bilingual ballots.
Id. at 450. Nevertheless, the United States Court of Appeals
for the First Circuit declared the plaintiffs the prevailing
party for attorney’s fees purposes because they “obtained the
44
desired practical outcome of their suit through the operation of
that injunction: the Commission in fact distributed bilingual
ballots,” regardless of the intervening legislation. Id. at
454. In other words, the plaintiffs “managed to obtain a
favorable, material alteration in the legal relationship between
the parties prior to the intervening act of mootness.” Id. at
453.
In the present case, the trial court’s grant of relief --
ordering the City Clerk to process the referendum petition --
constituted a relief on the merits “modifying [defendants’]
behavior in a way that directly benefits the plaintiff.” Cf.
Farrar, supra, 506 U.S. at 111-12, 113 S. Ct. at 573, 121 L. Ed.
2d at 503. Before the court’s ruling, plaintiffs were unable to
place the ordinance on the ballot; after the ruling, Hoboken was
required to proceed with the referendum in the next election.
Moreover, we are not reading out of N.J.S.A. 10:6-2(c), as
the dissent claims, the “interference” portion of the statute.
Post at ___ (slip op. at 14–15). Placing obstacles or hindering
the exercise of a right -- without blocking the right --
constitutes an interference. For instance, those acting under
color of law who threaten or intimidate voters have violated the
New Jersey Civil Rights Act, even if those voters have exercised
their franchise by casting ballots. We need not, in this
45
opinion, sketch the various scenarios that would constitute
interference in violation of the Civil Rights Act.
B.
We also reject the dissent’s claim that because “there was
no precedential authority” that spoke precisely to the facts in
this case and because the City Clerk presumably acted in “good
faith,” plaintiffs are not entitled to relief under the New
Jersey Civil Rights Act. Post at ___ (slip op. at 4). Stripped
to its essence, the dissent is suggesting that injunctive relief
is barred by qualified immunity. Under Section 1983, when a
statutory or constitutional right is violated, a plaintiff is
entitled to injunctive relief even if the right was not
“sufficiently clear that a reasonable official would understand
that what he [was] doing violate[d] that right,” Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed.
2d 523, 531 (1987). See, e.g., Wood v. Strickland, 420 U.S.
308, 314 n.6, 95 S. Ct. 992, 997 n.6, 43 L. Ed. 2d 214, 221 n.6
(1975) (“[I]mmunity from damages does not ordinarily bar
equitable relief as well.”), abrogated in part on other grounds
by Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727,
2738, 73 L. Ed. 2d 396, 410 (1982); Hill v. Borough of Kutztown,
455 F.3d 225, 244 (3d Cir. 2006) (“[T]he defense of qualified
immunity is available only for damages claims -- not for claims
requesting prospective injunctive relief.”); Gormley v. Wood-El,
46
___ N.J. ___, ___ (2014) (slip op. at 51) (“[Q]ualified immunity
does not bar actions for injunctive relief.”). In cases in
which the right is not sufficiently clear, however, the
plaintiff may not secure money damages from a government
official. See Harlow, supra, 457 U.S. at 818, 102 S. Ct. at
2738, 73 L. Ed. 2d at 410 (“[G]overnment officials . . . are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights . . . .” (citations omitted)).
That the Clerk acted in good faith or that a court had not
previously addressed the specific facts in this case does not
bar equitable relief under the New Jersey Civil Rights Act -- no
more than it bars relief under Section 1983. Had plaintiffs
instituted a lawsuit for money damages against the City Clerk,
as opposed to seeking an action for injunctive relief, we would
be dealing with a different question. Here, plaintiffs had a
right to equitable relief to enforce the right of referendum.
C.
In summary, plaintiffs are deprived of a substantive right
protected by the New Jersey Civil Rights Act when a defendant
acting under color of law completely prevents them from
exercising that right. Before plaintiffs secured judicial
relief, the City Clerk prevented plaintiffs from enjoying their
right of referendum. Securing judicial relief does not erase
47
the earlier act of deprivation. We hold that the City Clerk
deprived plaintiffs of their substantive right of referendum
when he refused to file their referendum petition.
IX.
For the reasons explained, we affirm the judgment of the
Appellate Division upholding the trial court’s finding that
defendants violated the Faulkner Act. We reverse that part of
the Appellate Division’s judgment overruling the trial court’s
finding that plaintiffs were deprived of a substantive right
guaranteed by the New Jersey Civil Rights Act and vacating the
trial court’s award of attorney’s fees to plaintiffs. We remand
to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER, JUSTICE FERNANDEZ-VINA, and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUSTICE ALBIN’s
opinion. JUSTICE PATTERSON filed a separate opinion, concurring
in part and dissenting in part, in which JUSTICE LaVECCHIA
joins. JUDGE CUFF (temporarily assigned) did not participate.
48
SUPREME COURT OF NEW JERSEY
A-13/14 September Term 2013
072813
DANIEL TUMPSON, RUSSELL
HOOVER, ERIC VOLPE, CHERYL
FALLICK and JOEL HORWITZ,
Plaintiffs-Appellants
and Cross-Respondents,
v.
JAMES FARINA, in his capacity
as HOBOKEN CITY CLERK, and
THE CITY OF HOBOKEN,
Defendants-Respondents
and Cross-Appellants,
and
MILE SQUARE TAXPAYER
ASSOCIATION 2009, INC., GINA
DENARDO, individually and on
behalf of all similarly
situated and 611-613, LLC,
Individually and on behalf of
all similarly situated,
Intervenors-Respondents.
JUSTICE PATTERSON, concurring in part and dissenting in
part.
The majority holds today that the City Clerk of the City of
Hoboken did not properly apply the Faulkner Act, N.J.S.A.
40:69A-185 to -192, when he refused to file the petition
submitted by the challengers to Ordinance Z-88, and that the
Clerk’s action deprived plaintiffs of their rights under that
1
Act, in violation of N.J.S.A. 10:6-2(c) of the New Jersey Civil
Rights Act (NJCRA). I concur with the majority that if the City
of Hoboken interfered with plaintiffs’ due process right of
referendum with respect to the disputed ordinance, or attempted
to do so, it did not do so “by threats, intimidation or
coercion” within the meaning of N.J.S.A. 10:6-2(c), and that
plaintiffs accordingly have not presented an interference or
attempted interference claim under the NJCRA. Ante at ___ (slip
op. at 27). I disagree with the holding of the majority,
however, that the City’s actions in this case rose to the level
of a deprivation of plaintiffs’ civil rights under N.J.S.A.
10:6-2(c). Ante at ___ (slip op. at 40).
My conclusion is rooted in the nature of the parties’
underlying dispute. In its opinion today, the majority provides
significant guidance to municipal clerks in Faulkner Act
municipalities when confronted with facially deficient petitions
that do not include the required number of signatures. Ante at
___ (slip op. at 22-24). In the future, municipal clerks will
be on notice of the procedure to be followed when such petitions
are presented for filing.
Until the ruling of the Appellate Division panel in this
case, however, there was no such guidance. When the Hoboken
Municipal Clerk reviewed plaintiffs’ petition, there was no
authority in our case law defining the procedure to be followed
2
when a petition lacking the number of signatures required by the
Faulkner Act was presented. See N.J.S.A. 40:69A-185 (stating
that “the petition shall be signed by a number of the legal
voters of the municipality equal in number to at least 15% of
the total votes cast in the municipality at the last election at
which members of the General Assembly were elected”).
Prior case law regarding the adequacy of petitions under
the Faulkner Act addressed issues different from that presented
by plaintiffs’ petition: the petitioners’ compliance with the
requirement that “the names and addresses of five voters,
designated as the Committee of the Petitioners” “appear on each
petition paper,” pursuant to N.J.S.A. 40:69A-186, or the methods
by which municipal clerks should determine “whether the petition
[was] signed by a sufficient number of qualified voters,”
pursuant to N.J.S.A. 40:69A-187. See Hamilton Twp. Taxpayer’s
Ass’n v. Warwick, 180 N.J. Super. 243, 244-45, 248 (App. Div.)
(upholding municipal clerk’s rescission of his prior
certification of petition signed by requisite number of voters
because he found that “the separate petition sheets omitted the
names and addresses of the five-member Committee of the
Petitioners at the time the voters affixed their signatures”),
certif. denied, 88 N.J. 490 (1981); D’Ascensio v. Benjamin, 142
N.J. Super. 52, 55 (App. Div.) (rejecting trial court’s
specified methods to tally signatures, and authorizing municipal
3
clerk “to adopt any rational means of performing [that] duty,
subject to judicial review” under abuse of discretion standard),
certif. denied, 71 N.J. 526 (1976); Lindquist v. Lee, 34 N.J.
Super. 576, 577, 581-82 (App. Div. 1955) (upholding municipal
clerk’s decision that petition was insufficient, even though it
“contain[ed] a sufficient number of signers,” because it did not
show “[t]he names and addresses of the five voters designated as
the Committee of the Petitioners . . . on each of the petition
papers as required by law”); see also Pappas v. Malone, 36 N.J.
1, 6 (1961) (noting that “in view of the overall uncertainties
in the statute and the substantial public interest involved we
are not disposed to invalidate the clerk’s rejection for his
failure to meet the requirement of specificity”). In these
settings in which the petitions clearly included the minimum
number of signatures required by N.J.S.A. 40:69A-185, appellate
decisions nonetheless afforded to municipal clerks broad
discretion to apply the technical requirements of the Faulkner
Act. Accordingly, prior to 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 statutory mark.
Accordingly, when the City of Hoboken invoked the technical
requirements of the Act to reject plaintiffs’ patently deficient
petitions, it asserted a good faith legal argument in an area of
4
law in which case law provided little guidance. As the majority
recounts, plaintiffs’ construction of the Faulkner Act
prevailed. In a ruling that would withstand appellate review,
the trial court held that the Clerk’s actions had been arbitrary
and capricious, and ordered him to process and review the
original and supplemental petitions filed by plaintiffs.
In the wake of these developments, plaintiffs achieved
their objective. On the City of Hoboken ballot for the November
8, 2011 general election, the referendum to repeal the disputed
ordinance appeared as Public Question No. 2. Although the
voters rejected plaintiffs’ challenge to the ordinance, 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. I respectfully
submit that, at most, the position taken by the Municipal Clerk
triggered an interference, or attempted interference, with the
Faulkner Act right of referendum. I cannot join the majority’s
holding that plaintiffs suffered a deprivation of that right
under N.J.S.A. 10:6-2(c).1
1
The majority depicts this conclusion to be a contention that
qualified immunity should bar injunctive relief in this case.
Ante at ___ (slip op at 46-47). That characterization is
incorrect; I offer no such argument. Instead, I part company
with the majority’s conclusion that the conduct at issue in this
case constitutes a “deprivation” under N.J.S.A. 10:6-2(c).
5
The meaning of a deprivation of a right is illustrated by
decisions applying 42 U.S.C.A. § 1983, which, unlike the NJCRA,
does not address an “interference” or “attempted interference”
claim. Federal courts, for example, have consistently found a
deprivation of a procedural due process right when a defendant
improperly causes an actual loss of that right, as opposed to a
delay or a temporary obstruction of its exercise. In Carey v.
Piphus, the United States Supreme Court held that two students
suspended from public schools without an adjudicatory hearing
had sustained a deprivation of their right to procedural due
process, warranting an award of nominal damages under 42
U.S.C.A. § 1983, regardless of the ultimate outcome of the case.
435 U.S. 247, 266-67, 98 S. Ct. 1042, 1053-54, 55 L. Ed. 252,
266-67 (1978). The Supreme Court noted that the hearings to
which the plaintiffs were entitled did not occur, and that even
if their “suspensions were justified, and even if they did not
suffer any other actual injury, the fact remains that they
were deprived of their right to procedural due process.” Ibid.;
see also J.A. v. Bd. of Educ. for S. Orange & Maplewood, 318
N.J. Super. 512, 524 (App. Div. 1999) (finding that by
“excluding [a student] from its high school without informing
her of the grounds of its decision, the South Orange-Maplewood
Board of Education violated the due process rights guaranteed to
6
[that student] by the Fourteenth Amendment of the Federal
Constitution”).
Similarly, in Burch v. Apalachee Cmty. Mental Health
Servs., Inc., the plaintiff’s five-month involuntary commitment
during which he was “never . . . accorded a hearing at which to
challenge his commitment and treatment” was sufficient to “state
a procedural due process claim upon which relief could be
granted” under 42 U.S.C.A. § 1983. 840 F.2d 797, 799, 803 (11th
Cir. 1988), aff’d, Zinermon v. Burch, 494 U.S. 113, 110 S. Ct.
975, 108 L. Ed. 2d 100 (1990). A former college president whose
employment was terminated with no adjudicatory hearing was held
to have a cognizable claim under 42 U.S.C.A. § 1983 for
deprivation of his right to procedural due process in Hostrop v.
Bd. of Junior Coll. Dist. No. 515, 523 F.2d 569, 572, 575-76
(7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S. Ct. 1748, 48
L. Ed. 2d 208 (1976). See also Fetner v. City of Roanoke, 813
F.2d 1183, 1185-86 (11th Cir. 1987) (finding that dismissal of
police chief without pretermination hearing raised valid
procedural due process claim under 42 U.S.C.A. § 1983); Enter.
Fire Fighters’ Ass’n v. Watson, 869 F. Supp. 1532, 1541 (M.D.
Ala. 1994) (finding that firefighter’s procedural due process
rights were violated when he was terminated without being
afforded pretermination hearing).
7
In each of these cases, the plaintiff identified a
procedural due process right to a hearing before action could be
taken against him or her, and the defendant, clearly
contravening the required procedure, did not hold the requisite
hearing. These litigants were not simply subjected to delay,
inconvenience, or the expense of bringing suit to resolve a
close question of law. Each plaintiff was unjustifiably denied
the right to defend him or herself at an adjudicatory hearing,
thus supporting a claim under 42 U.S.C.A. § 1983 for a
deprivation of that right.
New Jersey and federal courts applying 42 U.S.C.A. § 1983
also have recognized deprivation claims in a range of settings
in which the plaintiff has been denied an identified right. In
Endress v. Brookdale Cmty. Coll., the Appellate Division found a
deprivation of the plaintiff’s First Amendment rights when she
was terminated from her employment as a college professor in
retaliation for writing a newspaper article critical of her
employer. 144 N.J. Super. 109, 118-19, 137 (App. Div. 1976).
In another First Amendment case, the court found that Cinevision
Corporation, a concert promoter, “successfully brought a
constitutional claim under 42 [U.S.C.A.] § 1983” because “the
City of Burbank violated Cinevision’s [F]irst [A]mendment rights
by disapproving Cinevision’s proposed concerts on the basis of
the content of the performer’s expression and other arbitrary
8
factors.” Cinevision Corp. v. Burbank, 745 F.2d 560, 581 (9th
Cir. 1984), cert. denied, 471 U.S. 1054, 105 S. Ct. 2115, 85 L.
Ed. 2d 480 (1985). In Bung’s Bar & Grille, Inc. v. Twp. Council
of Florence, the court recognized a deprivation claim rooted in
the government’s assessments against the plaintiffs’ property,
in violation of the Fourteenth Amendment to the Federal
Constitution and of Article I, Paragraph 1 of the New Jersey
Constitution. 206 N.J. Super. 432, 457 (Law Div. 1985).
Police use of excessive force has been held in several
cases to constitute a deprivation of the plaintiffs’ Fourth
Amendment rights under 42 U.S.C.A. § 1983. See, e.g., Thomas v.
Frederick, 766 F. Supp. 540, 553-55 (W.D. La. 1991) (finding
that police officer deprived plaintiff of her Fourth Amendment
rights by violently throwing her against his car, causing her to
suffer severe back injury, when plaintiff “was unarmed and made
no aggressive move which would have justified [the officer’s]
actions”); Mikulec v. Town of Cheektowage, 909 F. Supp. 2d 214,
219-21 (W.D.N.Y. 2012) (denying defendant police officers’
motion for summary judgment on plaintiff’s Fourth Amendment
excessive force claim because officers apparently “smashed”
plaintiff’s face into patrol car and violently threw him into
patrol car while plaintiff was handcuffed); M.D. v. Smith, 504
F. Supp. 2d 1238, 1248-49, 1254 (M.D. Ala. 2007) (denying
defendant police officer’s motion for summary judgment on
9
plaintiff’s Fourth Amendment excessive force claim because
officer slammed plaintiff’s head “into the car with force
sufficient to cause [plaintiff’s] head to dent the car” when
plaintiff’s conduct did not suggest that he posed any risk to
officer). In each of these settings, the plaintiff did not
merely experience delay or confront obstacles as the parties’
legal rights were determined by a court, but was subjected to a
complete denial of that right.
To the majority, the fact that plaintiffs were compelled to
resort to litigation in order to ensure a vote on the repeal of
the challenged ordinance means that they suffered a deprivation
of their rights under the Faulkner Act. Ante at ___ (slip op.
at 40-43). The majority relies on cases in which a governmental
entity indisputably –- in some cases admittedly –- violated a
statute, ordinance or constitutional provision in seeking to bar
the plaintiffs’ activity. In Lippoldt v. Cole, the defendant
City of Wichita conceded that it had denied the plaintiffs’
application for a parade permit notwithstanding the fact that
its parade ordinance mandated the grant of that permit. 468
F.3d 1204, 1210 (10th Cir. 2006). Similarly, in People Against
Police Violence v. City of Pittsburgh, although the City of
Pittsburgh immediately abandoned its defense of an ordinance
that, among other requirements, compelled individuals seeking to
engage in expressive activity in public forums to prepay the
10
City’s police costs associated with that activity, the City did
not repeal that ordinance or substitute a constitutional
alternative in its stead. 520 F.3d 226, 229 (3d Cir. 2008).
Accordingly, the District Court issued an injunction in
plaintiffs’ favor, which the City did not challenge on appeal.
Id. at 230. The Third Circuit affirmed the District Court’s
holding that plaintiffs were “prevailing parties” under 42
U.S.C.A. § 1988. Id. at 228-29.
In Young v. City of Chicago, the Seventh Circuit addressed
issues stemming from a District Court’s decision to enjoin the
City of Chicago’s ban on all protests within a perimeter around
the site of the 1996 Democratic National Convention. 202 F.3d
1000, 1000-01 (7th Cir. 2000). The City waited until after the
convention was over to seek appellate review, and argued that
since the First Amendment issue was moot, it should not be
liable under 42 U.S.C.A. § 1988 for attorneys’ fees. Ibid. The
Seventh Circuit disagreed, and affirmed the District Court’s
award of fees. Id. at 1000-01.2
2
McQueary v. Conway, 614 F.3d 591 (6th Cir. 2010), cert. denied,
562 U.S. ___, 131 S. Ct. 927, 178 L. Ed. 2d 752 (2011), also
cited by the majority, addresses a different issue not remotely
raised by this case. There, the Sixth Circuit reviewed a
District Court’s denial of attorneys’ fees under 42 U.S.C.A. §
1988 to a member of the Westboro Baptist Church. Id. at 595-96.
The plaintiff had asserted an overbreadth challenge to a state
law barring disturbances within three hundred feet of the site
of a funeral or burial. Ibid. The District Court denied the
fee application, reasoning that the plaintiff’s proposed funeral
11
Rogers Grp., Inc. v. City of Fayetteville involved a due
process and unconstitutional taking without just compensation
challenge to an ordinance that placed limitations on the
operations of rock quarries “near” the city limits, as well as
within those limits, thus constituting an effort by the city to
regulate activities outside of its boundaries. 683 F.3d 903,
904-05 (8th Cir. 2012). The constitutional challenge prompted
the City of Fayetteville to repeal the portion of its ordinance
that attempted to regulate rock quarries located beyond its
borders. Id. at 906. The Eighth Circuit held that the
plaintiff was a “prevailing party” for purposes of 42 U.S.C.A. §
1988, notwithstanding the City’s abandonment of its defense of
the challenged ordinance. Id. at 911-13.
The single case cited by the majority that addresses an
election, Diffenderfer v. Gomez-Colon, 587 F.3d 445 (1st Cir.
2009), arose from circumstances very different from the setting
of this case. There, the plaintiffs challenged the decision
made by the State Election Commission of the Commonwealth of
Puerto Rico that the ballots for the 2008 election in the
Commonwealth -- including the elaborate instructions on how to
picketing would violate other provisions of Kentucky law that he
declined to challenge. Id. at 596. The Sixth Circuit rejected
that conclusion, noting that the District Court had improperly
assumed that the plaintiff would violate unchallenged provisions
of state law, and remanded the matter for a determination of
whether the plaintiff was a “prevailing party” under 42 U.S.C.A.
§ 1988. Id. at 602-05.
12
use the “complex and difficult to understand” ballot -- would be
printed in Spanish only. Diffenderfer v. Gomez-Colon, 587 F.
Supp. 2d 338, 341-42, 349 (D.P.R. 2008). The District Court
certified a class of Commonwealth residents who spoke only
English, and held that Spanish-only ballots contravened the
Voting Rights Act, the Equal Protection Clause and the First
Amendment. Id. at 342, 345-50. The District Court later
awarded counsel fees to the plaintiffs. Diffenderfer v. Gomez-
Colon, 606 F. Supp. 2d 222, 230-31 (D.P.R. 2009).
While that award was on appeal, the Commonwealth’s
legislature enacted a statute mandating bilingual ballots.
Diffenderfer, supra, 587 F.3d at 450. The First Circuit vacated
the underlying judgment as moot, but affirmed the award of
counsel fees. Id. at 451, 455. It held that the action by the
legislature was “a circumstance not attributable to the
Commission as an individual administrative entity.” Id. at 452.
It also noted that corrective legislation “is generally
considered an intervening, independent event and not voluntary
action, particularly when the governmental entity taking the
appeal, as here, is not part of the legislative branch.” Ibid.
The First Circuit’s reasoning is simply irrelevant to this case.
Here, defendants took a defensible position on the procedure to
be followed upon receipt of a defective Faulkner Act petition,
13
and plaintiffs achieved their objective in the following
election.
In short, the majority cites no federal or New Jersey case
law that suggests, let alone holds, that when a governmental
authority asserts a viable legal position on an unsettled
question of law, and that question is resolved in the
plaintiff’s favor in time for the plaintiff to exercise the
disputed right, the defendant’s action amounts to a deprivation.
By the plain meaning of the term as it appears in N.J.S.A. 10:6-
2(c), and in the many illustrations provided by case law
construing its federal counterpart, a deprivation of the
plaintiff’s constitutional right is rooted in that plaintiff’s
loss of the ability to exercise that right.
In contrast to 42 U.S.C.A. § 1983, the NJCRA specifically
addresses claims premised upon the defendant’s interference or
attempted interference with the plaintiff’s “exercise or
enjoyment of” his or her “substantive rights, privileges or
immunities.” N.J.S.A. 10:6-2(c). In my view, when a defendant
has taken a position that requires a plaintiff to spend time,
effort and resources in order to resolve a novel legal question,
the defendant has -- at most -- interfered with or attempted to
interfere with the plaintiff’s rights. If, as the majority
suggests, a plaintiff who successfully litigates a previously
unsettled legal issue has been “deprived” of a right by virtue
14
of nothing more than the necessity of filing suit, I can discern
no meaningful distinction between the provisions of the statute
that address deprivation, on the one hand, and interference and
attempted interference, on the other. If the Legislature had
contemplated a statute that operates in the way that the
majority construes it, it would not have limited the reach of
the NJCRA as it did. It would have authorized an award of
attorneys’ fees to any plaintiff who has successfully litigated
a dispute over an alleged governmental interference with a
recognized legal right.
Instead, the Legislature carefully distinguished between an
interference or attempted interference with a substantive right
-- which warrants no NJCRA remedy unless achieved “by threats,
intimidation or coercion” -- and a deprivation of such a right.
N.J.S.A. 10:6-2(c); see Ramos v. Flowers, 429 N.J. Super. 13, 21
(App. Div. 2012). That is the line that the Legislature drew,
and it should, in my view, be preserved.
I respectfully submit that the majority applies the NJCRA
beyond its intended parameters when it construes a
municipality’s assertion of a good faith legal position in an
area of unsettled law to be a deprivation of plaintiffs’ civil
rights within the meaning of N.J.S.A. 10:6-2(c). Accordingly, I
would affirm the determination of the Appellate Division in its
15
entirety, and to the extent that the majority reverses that
determination, I respectfully dissent.
JUSTICE LaVECCHIA joins in this opinion.
16
SUPREME COURT OF NEW JERSEY
NO. A-13/14 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
DANIEL TUMPSON, RUSSELL
HOOVER, ERIC VOLPE, CHERYL
FALLICK and JOEL HORWITZ,
Plaintiffs-Appellants
and Cross-Respondents,
v.
JAMES FARINA, in his capacity
as HOBOKEN CITY CLERK, and
THE CITY OF HOBOKEN,
Defendants-Respondents
and Cross-Appellants,
and
MILE SQUARE TAXPAYER
ASSOCIATION 2009, INC., GINA
DENARDO, individually and on
behalf of all similarly situated
and 611-613, LLC, individually
and on behalf of all similarly situated,
Intervenors-Respondents.
DECIDED July 31, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY Justice Patterson
DISSENTING OPINION BY
AFFIRM IN PART/ CONCUR IN
CHECKLIST REVERSE IN PART/ PART/
REMAND DISSENT IN PART
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) ---------------------- -------------------
TOTALS 4 2
1
2