NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-0356-22 A-0560-22
JERSEY CITY UNITED AGAINST THE NEW WARD MAP, DOWNTOWN COALITION OF APPROVED FOR PUBLICATION NEIGHBORHOOD ASSOCIATIONS, March 12, 2024 GREENVILLE NEIGHBORHOOD APPELLATE DIVISION ALLIANCE, FRIENDS OF BERRY LANE PARK, RIVERVIEW NEIGHBORHOOD ASSOCIATION, PERSHING FIELD NEIGHBORHOOD ASSOCIATION, SGT. ANTHONY NEIGHBORHOOD ASSOC., GARDNER AVENUE BLOCK ASSOCIATION, LINCOLN PARK NEIGHBORHOOD WATCH, MORRIS CANAL REDEVELOPMENT CDC, HARMON STREET BLOCK ASSOCIATION, CRESCENT AVENUE BLOCK ASSOCIATION, DEMOCRATIC POLITICAL ALLIANCE, and FRANK E. GILMORE, in his individual and official capacity as Ward F Councilman,
Plaintiffs-Appellants,
v.
JERSEY CITY WARD COMMISSION and JOHN MINELLA, in his official capacity as Chair of the Commission, Defendants-Respondents. ________________________________
JAMES CALDERON,
Plaintiff-Appellant,
CITY OF JERSEY CITY WARD COMMISSION, JOHN MINELLA, Chairman, SEAN J. GALLAGHER, Secretary, and Commissioners DANIEL E. BECKELMAN, PAUL CASTELLI, JANET LARWA, and DANIEL MIQUELI,
Defendants-Respondents. _______________________________
Argued November 27, 2023 – Decided March 12, 2024
Before Judges Gilson, DeAlmeida, and Bishop- Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-0960-22 and L-0821-22.
Renée W. Steinhagen argued the cause for appellants in A-0356-22 (New Jersey Appleseed Public Interest Law Center, Inc., Matsikoudis & Fanciullo, LLC, and Yael Bromberg (Bromberg Law LLC), attorneys; Renée W. Steinhagen, Yael Bromberg, and William C. Matsikoudis, on the briefs).
A-0356-22 2 James Calderon, appellant in A-0560-22, argued the cause pro se.
Jason F. Orlando argued the cause for respondents (Murphy Orlando LLC, attorneys; Jason F. Orlando and Tyler Newman, on the briefs).
The opinion of the court was delivered by
GILSON, P.J.A.D.
Following the 2020 decennial United States Census, the City of Jersey
City Ward Commission (the Commission) redrew the six election wards for the
City of Jersey City (the City). In these two appeals, which we consolidate for
purposes of this opinion, plaintiffs challenge the ward boundaries and map
adopted by the Commission.
Plaintiffs appeal from orders dismissing their complaints in lieu of
prerogative writs, contending that the new ward map violates the Municipal
Ward Law (the MW Law), N.J.S.A. 40:44-9 to -18, the New Jersey Civil Rights
Act (the CR Act), N.J.S.A. 10:6-1 to -2, and their rights of free speech, free
association, and equal protection under the New Jersey Constitution. They also
argue that the Commission did not comply with the Open Public Meetings Act
(the OPMA), N.J.S.A. 10:4-6 to -21.
Having reviewed these arguments in light of the record and law, we affirm
in part and reverse in part. We affirm the dismissal of plaintiffs' claims asserting
A-0356-22 3 violations of their constitutional rights, the CR Act, and the OPMA. We reverse
the dismissal of the claims of violations of the MW Law. Resolution of those
statutory claims requires some, albeit limited, fact-finding. Thus, we remand
the MW Law claims for further proceedings.
I.
The Legislature allows municipalities to adopt a charter or form of
government under which a municipality is divided into wards for the purpose of
electing members of the municipal governing body. N.J.S.A. 40:44-10. When
a municipality adopts that form of government, the MW Law identifies the
commissioners who will create the wards and periodically reassess and adjust
those wards. See N.J.S.A. 40:44-11, -13. The MW Law provides that the
commission shall be composed of the members of the county board of elections
and the municipal clerk. N.J.S.A. 40:44-11.
The MW Law also provides that the municipal ward commission "shall"
divide the municipality into "compact and contiguous" wards that are roughly
equal in population. N.J.S.A. 40:44-14. In that regard, the MW Law states:
The ward commissioners shall fix and determine the ward boundaries so that each ward is formed of compact and contiguous territory. The population of the most populous ward so created shall not differ from the population of the least populous ward so created by more than [ten percent] of the mean population of the
A-0356-22 4 wards derived by dividing the total population of the municipality by the number of wards created. The most recent [f]ederal decennial census shall be used as the population determinant.
[Ibid.]
Wards must be evaluated and, if necessary, adjusted every ten years based
on the federal decennial census. In that regard, the MW Law states:
Within [three] months following the receipt by the Governor of each federal decennial census, the ward commissioners shall meet in the manner provided in subsection a. of this section and proceed to make such adjustments in ward boundaries as shall be necessary to conform them to the requirements of this act.
[N.J.S.A. 40:44-13(c).]
The City is, and has been for decades, divided into six election wards:
Wards A, B, C, D, E, and F. In 2020, the United States Census was conducted,
and, on September 16, 2021, the Governor promulgated the results. The 2020
Census revealed that Ward E, the largest ward by population in the City, was
fifty-nine percent more populous than Ward D, the least populous ward. As of
the 2020 Census, Ward E had 69,524 residents, while Ward D had 40,733
residents. Therefore, under the MW Law, the Commission had to redraw the
City's ward boundaries and related map.
A-0356-22 5 The MW Law required the Commission to hold at least one meeting,
which was to be within three months of the receipt of the 2020 Census by the
Governor. Ibid. The MW Law also provided that the Commission can hire and
be assisted by a surveyor, an engineer, and "other assistants as shall be necessary
to aid [the Commission] in the discharge of [its] duties." N.J.S.A. 40:44 -12.
The Commission was to prepare a report on the boundaries of the wards, together
with a map, and the report was to be certified by at least three Commissioners.
N.J.S.A. 40:44-15(a). Thereafter, the certified report and map were to be filed
with the county clerk, the Secretary of State, and the municipal clerk. Ibid.
Finally, the municipal clerk was to cause notice of the ward boundaries to be
published in a local newspaper within two weeks of the filing of the
Commission's report. N.J.S.A. 40:44-16.
After receiving the 2020 Census, the Commission held three public
meetings on December 15, 2021, January 14, 2022, and January 22, 2022. The
Commissioners also conducted several working sessions during that time, but
the Commissioners certified that no more than three Commissioners were
present at any one working session.
On January 22, 2022, after listening to approximately three hours of public
comment, the Commission voted to adopt new boundaries for the six wards and
A-0356-22 6 approved a new ward map (the 2022 Ward Map). The ward maps before and
after 2022 are depicted in the two maps set forth below:
As these maps reflect, the City is irregularly shaped because its boundaries
are based on rivers, harbors, bays, cliffs, and adjoining municipalities. T he
Commission made various adjustments to the boundaries of the six wards.
Those adjustments particularly affected Wards A, E, and F. The shape of Ward
F also changed from a somewhat square shape to a jagged, sideways L-shape.
On February 3, 2022, the Commissioners' certified report and 2022 Ward
Map were filed with the county clerk, the City's municipal clerk, and the
A-0356-22 7 Secretary of State. Two days later, on February 5, 2022, notice of the new ward
boundaries was published in a local newspaper, The Jersey Journal.
Plaintiffs filed two complaints in lieu of prerogative writs challenging the
new ward boundaries and the 2022 Ward Map. The first action was filed on
March 7, 2022, by James Calderon, a City resident. Calderon challenged the
new wards on two grounds, contending that the Commission had violated (1) the
OPMA because the Commissioners had met in private sessions; and (2) the MW
Law because the wards, and in particular Wards A and F, were not compact and
had broken up the Lafayette neighborhood.
The second action was filed on March 21, 2022, by several community
organizations and Frank E. Gilmore, the Ward F Councilperson (collectively,
the CO plaintiffs). The CO plaintiffs contended that in redrawing the boundaries
of the wards, the Commission "disrupted and carved up long-standing
neighborhoods, ignored natural geographic dividers, and even split buildings in
half," and thereby "violated basic principles of fair representation and
communities of interest" embedded in the statutory requirement that wards be
"compact."
The CO plaintiffs' complaint contained four counts. Count one alleged a
violation of the MW Law, contending that the wards were not compact, and as
A-0356-22 8 a result violated the equal protection provision of the New Jersey Constitution.
Count two alleged that the Commissioners had failed to draw the wards
compactly, and that failure violated the CO plaintiffs' rights of free speech and
association under the New Jersey Constitution. In count three, the CO plaintiffs
alleged a violation of the OPMA, contending that the Commission had met and
made decisions on the new ward map in private working sessions. Finally, in
count four, they alleged that the Commission and its Chairperson had violated
the CR Act by depriving the CO plaintiffs of their "rights to reside in . . . ward[s]
that consist[] of compact territory that preserves their communities of interest"
and their ability to elect representatives of their choice. They also alleged that
the Commission had violated the CR Act by retaliating against Gilmore "for his
campaign advocacy around affordable housing, gentrification and displacement
by removing a significant number of his supporters" from Ward F.
Plaintiffs sought several forms of relief, including (1) a declaration that
the 2022 Ward Map and ward boundaries were invalid; (2) an order directing
the Commission to redraw the wards more compactly and without splitting
neighborhoods or communities of interest unnecessarily; (3) declarations that
the Commission violated the OPMA, the CO plaintiffs' rights to free speech and
association, and the MW Law; (4) an order "requiring the Commission to make
A-0356-22 9 sure that the process is transparent and all meetings of the Commission are open
to the public"; and (5) an order awarding plaintiffs legal fees.
In response, the Commission moved under Rule 4:6-2(e) to dismiss the
complaints for failure to state valid claims. After hearing oral argument, on
August 25, 2022, the trial court issued two orders dismissing both complaints
with prejudice. The trial court set forth its reasons on the record.
Concerning the CO plaintiffs' complaint, the trial court initially held that
the complaint was filed beyond the forty-five-day time limit for a prerogative
writs action. The court determined that the Commission had adopted the new
ward boundaries on January 22, 2022, but the CO plaintiffs had waited over fifty
days to file their complaint on March 21, 2022.
Nevertheless, the court went on to address the merits of the CO plaintiffs'
claims, as well as the claims asserted by Calderon. The court held that plaintiffs
failed to adequately plead a violation of the MW Law because the court found
that the 2022 Ward Map was compact. The court rejected the CO plaintiffs'
equal protection claim, reasoning that the CO plaintiffs based their claim on a
"common interest" rather than a protected category as required to sustain an
equal protection claim. The court then held that the CO plaintiffs' free speech
A-0356-22 10 and association claims were insufficiently pled because the Commission's
actions did not restrict those rights.
Addressing plaintiffs' OPMA claims, the court found that they were
deficient because plaintiffs did not identify the dates of any allegedly non-
conforming meetings where the Commission took official action. The court also
found that the working sessions were not subject to the OPMA because there
was no quorum of Commissioners present. Finally, the trial court held that the
claim that the Commission retaliated against Gilmore in violation of the CR Act
failed as a matter of law because the CO plaintiffs did not allege a violation of
a substantive right.
Plaintiffs now appeal from the orders dismissing their complaints in lieu
of prerogative writs with prejudice.
II.
Collectively, plaintiffs make five arguments in these consolidated appeals.
They contend that the Commission violated (1) the MW Law; (2) their rights to
equal protection; (3) their rights of freedom of speech and association; (4) the
OPMA; and (5) their rights under the CR Act. There is also an initial issue
concerning the timeliness of the CO plaintiffs' complaint.
A-0356-22 11 Appellate courts conduct a de novo review of an order dismissing a
complaint under Rule 4:6-2(e). Neuwirth v. State, 476 N.J. Super. 377, 389
(App. Div. 2023). "A reviewing court must examine 'the legal sufficiency of the
facts alleged on the face of the complaint,' giving the plaintiff the benefit of
'every reasonable inference of fact.'" Baskin v. P.C. Richard & Son, LLC, 246
N.J. 157, 171 (2021) (quoting Dimitrakopoulos v. Borrus, Goldin, Foley,
Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 107 (2019)). Courts should search
the complaint thoroughly "and with liberality to ascertain whether the
fundament of a cause of action may be gleaned even from an obscure statement
of claim, opportunity being given to amend if necessary." Ibid. (quoting Printing
Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).
If, however, "the complaint states no claim that supports relief, and
discovery will not give rise to such a claim, the action should be dismissed."
Ibid. (quoting Dimitrakopoulos, 237 N.J. at 107). Legal sufficiency "requires
allegation of all the facts that the cause of action requires." Cornett v. Johnson
& Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010), aff'd as modified, 211
N.J. 362 (2012). "In evaluating motions to dismiss, courts consider 'allegations
in the complaint, exhibits attached to the complaint, matters of public record,
and documents that form the basis of a claim.'" Banco Popular N. Am. v. Gandi,
A-0356-22 12 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 221 n.3
(3d Cir. 2004)). "If the court considers evidence beyond the pleadings in a Rule
4:6-2(e) motion, that motion becomes a motion for summary judgment, and the
court applies the standard of Rule 4:46." Dimitrakopoulos, 237 N.J. at 107.
A. The Timeliness of the CO Plaintiffs' Complaint.
Rule 4:69-6(a) states that "actions in lieu of prerogative writs must be
commenced no later than '[forty-five] days after the accrual of the right to the
review, hearing or relief claimed.'" Save Camden Pub. Schs. v. Camden City
Bd. of Educ., 454 N.J. Super. 478, 489 (App. Div. 2018) (alteration in original)
(quoting R. 4:69-6(a)). Where the forty-five-day mark falls on a Saturday,
Sunday, or legal holiday, the period is extended until the next business day. See
R. 1:3-1. Courts may extend the time "where it is manifest that the interest of
justice so requires." R. 4:69-6(c). In short, this rule is "aimed at those who
slumber on their rights." Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop.
Grp. Dev. Co., 204 N.J. 569, 579 (2011) (emphasis omitted) (quoting Schack v.
Trimble, 28 N.J. 40, 49 (1958)).
Rule 4:69-6(a) does not define when actions in lieu of prerogative writs
for ward commission actions accrue. The MW Law also does not specify when
the right to review an action by a ward commission accrues. Therefore, we look
A-0356-22 13 to substantive law on when an action accrues. See Harrison Redevelopment
Agency v. DeRose, 398 N.J. Super. 361, 401 (App. Div. 2008). Substantive law
establishes that an action in lieu of prerogative writs challenging an action of a
municipal government accrues on the date the action is adopted. See In re
Borough of Englewood Cliffs, 473 N.J. Super. 189, 205 (App. Div. 2022)
(holding that the right to challenge the Borough Council's approval of a
settlement agreement accrued on the date the Council voted to approve the
agreement, where no further action was required for approval).
When a ward commission adjusts boundaries following the receipt of a
federal decennial census, the commissioners are to meet, take an oath, and then
"make such adjustments in ward boundaries as shall be necessary to conform
them to the requirements of this act." N.J.S.A. 40:44-13(c). Thereafter, within
thirty days, the ward commissioners shall file their report "setting forth and
properly describing the ward boundaries fixed and determined." N.J.S.A. 40:44-
15(a). The certified report is then to be filed with the county clerk, the Secretary
of State, and the municipal clerk. Ibid. These provisions support the
interpretation that the Commission's actions are adopted when the report is filed.
The Commission's report was filed on February 3, 2022. The CO
plaintiffs filed their complaint in lieu of prerogative writs on March 21, 2022.
A-0356-22 14 Forty-five days from February 3, 2022, was Sunday, March 20, 2022. Thus, the
filing on March 21, 2022 was timely. Moreover, because the adoption of the
new ward boundaries and ward map is an issue of broad public concern, it would
have been in the interest of justice to extend the time to consider the CO
plaintiffs' complaint in lieu of prerogative writs. Indeed, it would have been
particularly appropriate in this matter to relax the forty-five-day requirement
because the complaint by Calderon was timely, and the court was going to
consider his claims on the merits. Thus, we reject the trial court's holding that
the complaint filed by the CO plaintiffs was untimely and we, accordingly,
consider all the claims on their merits.
B. The MW Law Claims.
The MW Law "shall constitute the exclusive method whereby the
boundaries of wards, or other similar representation districts, in municipalities
shall be fixed and determined." N.J.S.A. 40:44-10. It sets forth three
requirements for ward districts. N.J.S.A. 40:44-14. Each ward must be (1)
"compact" and (2) "contiguous," and (3) "[t]he population of the most populous
ward . . . shall not differ from the population of the least populous ward . . . by
more than [ten percent] of the mean population of the wards." Ibid. The third
requirement is designed to maintain a roughly equal population distribution
A-0356-22 15 among the wards and has the goal of protecting the one-person, one-vote
principle. See Davenport v. Apportionment Comm'n, 65 N.J. 125, 129 (1974)
(explaining that the goal of substantial equality of population among legislative
districts was "the overriding object of the one-[person], one-vote principle").
Initially, it is important to delineate what these appeals do not involve.
There is no claim of invidious discrimination. Moreover, plaintiffs have not
alleged gerrymandering based on political party. Instead, they have made broad
allegations about the fragmentation of "communities of interest" and
neighborhoods. Those allegations, however, do not support a claim that the
wards were shaped for partisan advantage that "will not be tolerated." Id. at
134.
Plaintiffs also do not challenge the 2022 Ward Map and the ward
boundaries on the grounds that the wards are not contiguous. Indeed, a review
of the 2022 Ward Map establishes that each ward is contiguous because none of
the wards are broken into more than one area.
Instead, plaintiffs contend that the wards are not compact. The Legislature
did not define "compact" in the MW Law. Moreover, there are no published
decisions interpreting the MW Law or its use of the word "compact."
Accordingly, we look to the plain meaning of the word "compact" and construe
A-0356-22 16 it within the context and purpose of the entire MW Law. See State v. Thompson,
250 N.J. 556, 572 (2022).
The definition of "compact" includes "having a dense structure or parts or
units closely packed or joined" and "occupying a small volume by reason of
efficient use of space." Merriam-Webster's Collegiate Dictionary 252 (11th ed.
2020). To give meaning to this definition as applied to a municipal ward, we
look to cases evaluating challenges to State legislative reapportionments and
congressional redistricting in New Jersey. See Steinhardt v. N.J. Redistricting
Comm'n (In re Establishment of Cong. Dists.), 249 N.J. 561 (2022); Davenport,
65 N.J. 125.1
It is fair to presume that in enacting the MW Law, the Legislature
considered how State legislative and congressional districts are reapportioned
and the law governing the scope of judicial review. In doing so, however, we
recognize a fundamental distinction between municipal wards and State
legislative or congressional districts. State legislative and congressional
districts are created by and defined in the New Jersey Constitution. N.J. Const.
1 Plaintiffs cite to cases from other jurisdictions and urge us to consider how those courts have evaluated challenges to redistricting plans. We find those cases to be of limited use in these appeals because we are construing the MW Law, a New Jersey statute. A-0356-22 17 art. IV, § 3, ¶ 1; N.J. Const. art. II, § 2, ¶ 1. In contrast, municipal wards are
created by and defined by the MW Law—a statute.
Our Supreme Court has long recognized that "[c]ompactness is an elusive
concept" and "may be of limited utility in creating legislative districts in light
of the odd configuration of our State and its municipalities." Davenport, 65 N.J.
at 133. Moreover, in considering challenges to the State legislative and
congressional reapportionment and redistricting plans, our Supreme Court has
held that courts have a "limited" role. Id. at 135. The Court has recognized that
"[p]olitics and political considerations are inseparable from districting and
apportionment." Id. at 134 (quoting Gaffney v. Cummings, 412 U.S. 735, 753
(1973)). Thus, the Court has explained:
Reapportionment is essentially a political and legislative process. The plan must be accorded a presumption of legality with judicial intervention warranted only if some positive showing of invidious discrimination or other constitutional deficiency is made. The judiciary is not justified in striking down a plan, otherwise valid, because a "better" one, in its opinion, could be drawn.
[Id. at 135 (quoting Gaffney, 412 U.S. at 751).]
Recognizing that the Constitution governs State legislative and
congressional districts, the Court has also held that commissions that adopt
redistricting or reapportionment plans are not subject to the normal arbitrary,
A-0356-22 18 capricious, and unreasonable standard generally used to evaluate agency actions.
In re Establishment of Cong. Dists., 249 N.J. at 576-77. Instead, courts are
limited to determining whether the redistricting plan is "unlawful or reflects
invidious discrimination." Id. at 574.
Applying these principles to municipal wards, we hold that two rules
govern a court's limited review of a commission's adjustment of wards when
there is no claim of invidious discrimination or partisan gerrymandering. First,
the boundaries and map can only be challenged on the basis that they violate any
of the three MW Law requirements of compactness, contiguousness, or
population deviation. Challenges based on general, but undefined, concepts of
"communities of interest" or "historic neighborhoods" are not viable. While
communities of interest and neighborhoods are clearly important, the
Legislature did not include those considerations in the MW Law.
Second, the role of a court in reviewing compactness is limited. A ward
need not be as tight as possible, and the realities of geography will require some
amount of elongation and jagged boundaries. A ward need only have a rational
basis for its shape, considered within the context of the shape of the overall
municipality, the other wards, and the population deviation between the most
A-0356-22 19 populous and least populous wards. The court should not consider whether there
is a better or more compact configuration.
Applying these rules to the 2022 Ward Map and the ward boundaries, we
reverse for a very limited fact-finding. On a motion to dismiss, and without any
factual record, the trial court in these matters simply concluded that the wards
were compact. The court needed to conduct some proceeding focused on the
question of whether there was a rational basis for the Commission's
configuration of the wards. That proceeding, however, should be limited. Given
the allegations in plaintiffs' complaints, they are not entitled to discovery, and
the fact-finding proceedings should be carefully restricted. The inquiry is
simply to determine if the Commissioners had a rational basis for their
configuration, so the court can then determine whether the wards are compact,
given the flexibility afforded by the MW Law. The trial court will have
discretion to allow focused cross-examination of one or more Commissioners,
provided that examination is limited to the rational basis for the compactness of
the wards. Moreover, plaintiffs cannot challenge the Commission's
configuration by arguing that the wards do not comply with other models of
compactness. In that regard, we expressly reject the CO plaintiffs' attempt to
use the Polsby-Popper Measure or the Reock Measure. Plaintiffs should also
A-0356-22 20 not be allowed to challenge the 2022 Ward Map based on whether it breaks up
communities of interest or neighborhoods.
C. The CO Plaintiffs' Constitutional Claims.
The CO plaintiffs allege that the Commission's failure to draw compact
wards violated their New Jersey constitutional rights of equal protection, free
speech, and free association. However, the CO plaintiffs' allegations, even when
given every reasonable inference, fail to state viable constitutional claims.
The principle of equal protection is derived from Article I, Paragraph 1 of
the New Jersey Constitution, which states:
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.
See also State v. Pimentel, 461 N.J. Super. 468, 490 (App. Div. 2019)
(recognizing that the principle of equal protection under the New Jersey
Constitution derives from this article).
To state an equal protection claim, a claimant must show that the
challenged governmental action does not apply "evenhandedly to similarly
situated people." Caviglia v. Royal Tours of Am., 178 N.J. 460, 472 (2004)
(recognizing that a governmental action is invalid on equal protection grounds
A-0356-22 21 when it does not apply "evenhandedly to similarly situated people"); Greenberg
v. Kimmelman, 99 N.J. 552, 568 (1985) (explaining that Article I, Paragraph 1
protects "against the unequal treatment of those who should be treated alike");
see also Lewis v. Harris, 188 N.J. 415, 443 (2006) (recognizing that an equal
protection challenge to a governmental action must be based on the contention
that the action does not apply "evenhandedly to similarly situated people").
In their complaint, the CO plaintiffs allege that the Commission's failure
to draw compact wards led to "the unnecessary splitting of neighborhoods and
other communities of interest" into different wards, resulting in a violation of
the CO plaintiffs' equal protection rights as guaranteed by the New Jersey
Constitution. They point to the splitting of the Lafayette neighborhood, which,
according to them, "comprises one [of] the oldest African-American
communities in the State of New Jersey." As already pointed out, however, the
CO plaintiffs acknowledge that the Commission did not engage in any form of
invidious discrimination, including discrimination based on race, in redrawing
the City wards.
More fundamentally, the CO plaintiffs' complaint has not identified how
any class of people was treated differently by the Commission as compared to
another class of people. The CO plaintiffs allege that some residents of the City
A-0356-22 22 were moved to different wards. That, however, is exactly what the MW Law
authorizes. Indeed, the CO plaintiffs are not contending that there should be no
wards; rather, they are objecting to how the Commission adjusted the wards.
Even giving the CO plaintiffs every reasonable inference, their complaint simply
does not state a viable equal protection claim.
For similar reasons, the CO plaintiffs' claims of violations of their free
speech and association rights also fail. In protecting free speech, the New Jersey
Constitution declares: "Every person may freely speak, write and publish his
[or her] sentiments on all subjects, being responsible for the abuse of that right.
No law shall be passed to restrain or abridge the liberty of speech or of the
press." N.J. Const. art. I, ¶ 6. Addressing the right of free association, the New
Jersey Constitution states: "The people have the right freely to assemble
together, to consult for the common good, to make known their opinions to their
representatives, and to petition for redress of grievances." N.J. Const. art. I, ¶
18.
In their complaint, the CO plaintiffs allege that "the Commission's [2022
Ward] Map amounts to an attempt to nullify the end-product of the democratic
election process." They assert that the voters in Ward F elected Gilmore as their
councilperson because of his advocacy for affordable housing and opposition to
A-0356-22 23 the City's increasing development of luxury high-rises. They then contend that
the Commission "tore apart large blocks of voters, split[ting] neighborhoods that
were instrumental in electing" Gilmore. They argue that the new ward map
thereby infringes on their rights to free speech and assembly by depriving them
of the right to "elect the candidate of their choice."
The wards created by the Commission, however, did not impact the CO
plaintiffs' rights of free speech and association. The CO plaintiffs have the same
free speech and association rights they had before the wards were adjusted in
2022. They are all residents of the City, and ward boundaries do not infringe on
their rights of free speech and association. While purposely diluting the votes
of certain identifiable groups might infringe on a constitutional right to
assemble, there is no showing that the Commission engaged in that kind of
diluting. The MW Law expressly states that when wards are redrawn, incumbent
councilpersons are not removed from their elected positions. N.J.S.A. 40:44-
17. Thus, it is pure speculation as to whether Gilmore will retain his position as
councilperson for Ward F at the next election.
More fundamentally, all residents of the City, including the CO plaintiffs,
will continue to have the same free speech and association rights to support or
oppose the re-election of Gilmore. While some residents who were formerly
A-0356-22 24 part of Ward F may not be able to directly vote for Gilmore, they can exercise
their rights of free speech and association to support candidates of their choice
in their new wards. In short, creating and adjusting wards necessitates that
residents of the City will be divided into different wards. Moreover, when wards
need to be adjusted to maintain substantial population equality, some residents
will have to be moved to different wards.
D. The OPMA Claims.
Plaintiffs argue that the Commission violated the OPMA by holding
unannounced private meetings. They contend that at those meetings, the
Commissioners (1) "drafted proposals for various maps[;]" (2) discussed
considerations related to these maps; (3) used mapping software to compare
"existing ward boundaries with census block data[;]" (4) discussed the extent to
which each map would "impose the least amount of demographic change to each
ward" and "lowering the deviation between the most populous ward and the least
populous to the lowest possible percentage[;]" and (5) selected a map to present
to the public, thereby deciding to exclude the presentation of the other maps they
were considering from the public. Plaintiffs also assert that these private
meetings "were open to all members of the Commission" and "were attended by
an effective majority."
A-0356-22 25 Plaintiffs' allegations failed to state a viable OPMA violation. The
Commissioners certified that all non-public working sessions involved less than
a quorum of the Commissioners. Although consideration of those certifications
effectively converted the motion to dismiss into a motion for summary judgment
on the OPMA claims, the Commission was still entitled to a dismissal of those
claims.
The MW Law contemplates that ward commissioners will engage in
working, non-public meetings. See N.J.S.A. 40:44-12 (allowing the
commissioners to retain and consult with a surveyor, an engineer, or "other
assistants as shall be necessary to aid them in the discharge of their duties").
Plaintiffs should not be permitted to take discovery concerning the non -public
meetings in an effort to try to support an OPMA claim, because that discovery
would invade the province of the Commissioners. The Commissioners'
obligations were to discharge their duties under the MW Law and adopt ward
boundaries and a map in accordance with the MW Law. See N.J.S.A. 40:44-13,
-15. The OPMA does not prohibit individual commissioners or a group of
commissioners, constituting less than a quorum, from meeting with "assistants"
and considering information, including alternative maps, in private meetings.
A-0356-22 26 Additionally, plaintiffs cannot show that the Commission took any formal
action in a non-public meeting. There is no dispute that the Commission voted
to adopt new ward boundaries and a new map at the January 22, 2022 public
meeting. Adopting new boundaries and a map are the only actions required of
the Commissioners under the MW Law. In short, plaintiffs have not alleged,
nor could they allege, viable OPMA claims.
E. The CO Plaintiffs' CR Act Claims.
The CR Act provides that "[a]ny person who has been deprived of . . . any
substantive rights, privileges or immunities secured by the Constitution or the
laws of this State . . . by a person acting under color of law" may bring an action
for damages. N.J.S.A. 10:6-2(c); see also Winberry Realty P'ship v. Borough of
Rutherford, 247 N.J. 165, 183 (2021). Accordingly, plaintiffs must show (1) a
substantive right conferred by a law or the Constitution; (2) a deprivation of that
right; and (3) that the deprivation was made by a person acting under color of
law. See Winberry Realty P'ship, 247 N.J. at 183-84.
The CO plaintiffs allege that the Commission's adoption of the new ward
boundaries and map violated their rights under the CR Act in two respects. First,
they contend that the Commission infringed on their constitutional rights of
equal protection, freedom of speech, and freedom of association. For the
A-0356-22 27 reasons that have already been explained, those constitutional claims fail and,
therefore, they also do not support viable claims under the CR Act. See
AmeriCare Emergency Med. Servs. v. City of Orange Twp., 463 N.J. Super.
562, 574 (App. Div. 2020) (explaining that a CR Act claim is viable only where
someone acting under color of law has deprived the plaintiff of a right or has
interfered with the plaintiff's enjoyment or exercise of a right); Hurdleston v.
New Century Fin. Servs., 629 F. Supp. 2d 434, 443 (D.N.J. 2009) (explaining
that because the plaintiff had not shown deprivation of a substantive right, the
defendants were entitled to summary judgment on the plaintiff's CR Act claim).
The CO plaintiffs also allege that the Commission retaliated against
Gilmore in adopting the new ward boundaries. They alleged that the retaliation
took the form of moving certain residents who had voted for Gilmore out of
Ward F and removing federal opportunity zones and proposed or approved
development projects from Ward F. As already discussed, this claim is
speculative and does not rise to the level of a substantive right, privilege, or
immunity secured by the Constitution or the laws of New Jersey. Accordingly,
this claim was also properly dismissed.
A-0356-22 28 F. Conclusion.
In summary, we affirm the dismissal of plaintiffs' constitutional claims
and their claims under the OPMA and the CR Act. We reverse and remand the
claims under the MW Law for a focused and limited proceeding on whether the
Commission had a rational basis for the ward boundaries and map it adopted.
That rational basis may well be set forth in the Commission's report. If so, the
Commissioners can certify that rational basis, and the trial court can then
determine if that is sufficient. On the current record, plaintiffs are not entitled
to discovery from or depositions of the Commissioners.
Affirmed in part, reversed in part, and remanded in accordance with this
opinion. We do not retain jurisdiction.
A-0356-22 29