Municipal Council v. Essex County Board of Elections

611 A.2d 1157, 259 N.J. Super. 211, 1992 N.J. Super. LEXIS 332
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 16, 1992
StatusPublished
Cited by2 cases

This text of 611 A.2d 1157 (Municipal Council v. Essex County Board of Elections) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Municipal Council v. Essex County Board of Elections, 611 A.2d 1157, 259 N.J. Super. 211, 1992 N.J. Super. LEXIS 332 (N.J. Ct. App. 1992).

Opinion

CASSINI, J.S.C.

Plaintiff, Municipal Council of the City of Newark (hereinafter “Newark”), moved for summary judgment on the issue of whether the defendant Essex County Board of Elections (hereinafter “Board”) violated the Open Public Meetings Act (hereinafter “OPMA”), N.J.S.A. 10:4-6, et seq.

In the Spring of 1991, the Board met with the City Clerk of each municipality within the county to redraw the ward lines pursuant to the Municipal Ward Law, N.J.S.A. 40:44-9, et seq. The adjustment of the election district lines was approved by the Board at a meeting on May 19, 1991.

Thereafter, at a February 28,1992 meeting, the Board adjusted several election districts in the eastern and central wards of Newark. This action was rescinded due to technical errors that occurred at the meeting. On March 9,1992, the Board met and again adjusted the boundaries of the eastern and central wards of Newark.

Notice of the February 28, 1992 and March 9, 1992 meetings did not meet the requirements of the Open Public Meetings Act, N.J.S.A. 10:4-6, et seq., because the notices were published in only one newspaper and were not filed with the county clerk. In addition, neither of the notices listed the meeting agenda, to the extent known, contrary to the requirements of the statute.

A Board meeting was then scheduled for May 29, 1992. This meeting was properly noticed by filing the notice with the county clerk, publishing the notice in two newspapers, complete with the proposed agenda, posting the notice and making a press alert. In short, this meeting was in compliance with the OPMA. At the meeting, the Board considered the redistricting de novo.

[213]*213Newark now opposes and the new election boundaries in the central and east wards, as adopted by the Board at the May 29, 1992 meeting, and is seeking a partial summary judgment voiding the Board’s redistricting due to the Board’s failure to provide adequate notice of the earlier meetings, contrary to the requirements of the OPMA, N.J.S.A. 10:4-6, et seq.

It is apparent, and defendant concedes that, the meetings of the Board on February 28, and March 9, 1992 did not comply with N.J.S.A. 10:4-8, in that the notices of those meetings were not filed with the Essex County Clerk; the agendas were not published to the extent known and although there was some form of notice of the meetings, the notices were published in only one newspaper.

It is defendants’ position, however, that any inadequacy concerning the above meetings was cured by the Board’s properly noticed meeting held on May 29, 1992, that the Board at that meeting considered the redistricting de novo and that such consideration constituted corrective or remedial action as provided for in N.J.S.A. 10:4-15. The statute, in relevant part, provides:

. a public body may take corrective or remedial action by acting de novo at a public meeting held in conformity with this act and other applicable law regarding any action which may otherwise be voidable pursuant to this section____”

In addition, plaintiff raises the issue of whether the Board complied with the provisions of N.J.S.A. 19:4-15, which postpones the effectiveness of redistricting until after the General Election if effected less than 75 days before the Primary Election. In this case the Primary was June 2, 1992. Plaintiff’s argument is that the action taken by the Board on May 29, 1992, four days before the Primary Election, must be postponed until after the General Election based upon N.J.S.A. 19:4-15, because the Board’s prior actions were ineffective under the OPMA. However, defendant argues that this contention is overcome by the retroactive effect of the de novo action of the Board on May 29, 1992, which action ratified and related [214]*214back to the February 28 and March 9,1992 meeting dates, when the original actions were taken.

As support for defendants’ “relation back” theory, they rely on Precision Industrial Design Co. v. Beckwith, 185 N.J.Super. 9, 447 A.2d 186 (App.Div.1982), certif. denied, 91 N.J. 545, 453 A.2d 863 (1982). The Appellate Division held that the provisions of the OPMA which afford a public body the opportunity to take corrective action in conjunction with conferring on the courts the authority to provide appropriate remedies to secure compliance “bespeak a legislative intention to provide maximum flexibility in rectifying governmental action which falls short of the standards of openness prescribed for the conduct of official business” (at 15). Hence, defendant argues that the action taken by the Board at the May 29, 1992 meeting was a ratification of its earlier actions because of the doctrine of flexibility in rectifying prior government action, as set forth by the court in Precision. Defendant also relies on Houman v. Bor. of Pompton Lakes, 155 N.J.Super. 129, 382 A.2d 413 (Law Div.1977), wherein the court explained the distinction between “voidable” and “void” as they relate to the OPMA. Also, the court found that a public body, pursuant to N.J.S.A. 10:4-15, could retroactively ratify its actions. That is, corrective action may be taken nunc pro tunc.

In opposition, Newark cites the case of Polillo v. Deane, 74 N.J. 562, 379 A.2d 211 (1977) for the proposition that the theory of relation back is not available to the defendant and therefore, any action taken at a meeting which did not comply with the requirements of the OPMA must be invalidated as a matter of law.

Although Polillo did not allow later meetings implicitly to rectify defects of earlier meetings, it also did not find, in fashioning a remedy, it necessary to “invalidate and repudiate all other public meetings” (at 580, 379 A.2d 211). Thus, Polillo strongly suggests that a public body may cure defects of [215]*215earlier meetings if the standards of the OPMA are satisfied at subsequent meetings.

Plaintiff, in further opposition, argues that the Appellate Division in Precision, supra, allowed the theory of ratification and relation back to apply, but that was a very narrow holding and only applies in the context of those particular circumstances and that it was a very narrow holding. In Precision, a planning board formally adopted a written resolution denying a developer’s application at a meeting in violation of the OPMA, following several meetings where hearings had been held, on the application, in conformance with the OPMA. Plaintiff attempts to distinguish Precision based upon the contentions that first, violations of the OPMA, in that case, were merely technical in nature, second, that an issue such as the automatic approval provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1, does not exist here and third, there was a meeting held in conformance with the OPMA at which time the public body acted on the application.

This court is of the opinion that such distinctions are unpersuasive. The OPMA is remedial in nature, not punitive.

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611 A.2d 1157, 259 N.J. Super. 211, 1992 N.J. Super. LEXIS 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/municipal-council-v-essex-county-board-of-elections-njsuperctappdiv-1992.