Tumpson v. Farina

67 A.3d 660, 431 N.J. Super. 164, 2013 WL 2319364, 2013 N.J. Super. LEXIS 76
CourtNew Jersey Superior Court Appellate Division
DecidedMay 29, 2013
StatusPublished
Cited by2 cases

This text of 67 A.3d 660 (Tumpson v. Farina) 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
Tumpson v. Farina, 67 A.3d 660, 431 N.J. Super. 164, 2013 WL 2319364, 2013 N.J. Super. LEXIS 76 (N.J. Ct. App. 2013).

Opinion

The opinion of the court was delivered by

ST. JOHN, J.A.D.

We are presented with two issues in this appeal: whether James Farina, the Clerk of the City of Hoboken, complied with the requirements of the Optional Municipal Charter Law, commonly known as the Faulkner Act (Faulkner Act), N.J.S.A. 40:69A-1 to -210, with regard to a referendum petition submitted by plaintiffs as a Committee of Petitioners (Committee); and, if he did not, whether his conduct constituted a violation of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, which would allow an award of attorneys’ fees to the prevailing party.

[169]*169I.

We briefly summarize the relevant procedural history and the facts based on the record before us.

Plaintiffs are residents of the City of Hoboken, which is organized under the Faulkner Act. By enacting N.J.S.A. 40:69A-185, the Legislature provided voters in Faulkner Act municipalities the right to subject an ordinance passed by their municipal council to a popular plebiscite.1 The Supreme Court has suggested “that the referendum statute in the Faulkner Act should be liberally construed ... to promote the ‘beneficial effects’ of voter participation.” In re Ordinance 04-75, supra, 192 N.J. at 459, 931 A.2d 595 (quoting Retz v. Mayor & Council of Saddle Brook, 69 N.J. 563, 571, 355 A.2d 189 (1976)).

The referendum process is designed to serve as “a check on the exercise of local legislative power, fostering citizen involvement in the political affairs of the community.” Ibid. Subject to certain exceptions not applicable here, the referendum process confers upon the voters of a municipality the authority “to approve or reject at the polls ... any ordinance passed by the council, against which a referendum petition has been filed as herein provided.” N.J.S.A. 40:69A-185.

On February 16, 2011, the Hoboken City Council (Council) introduced Ordinance Z-88 (Ordinance),2 which sought to amend a portion of the city rent control code. The amendments to the code included a disclosure statement provision, as well as a two-year limitation on requesting a legal rent calculation and on collecting rent overcharges. On March 2, 2011, the Council unanimously approved the Ordinance. On March 11, 2011, Mayor Dawn Zim[170]*170mer approved the Ordinance, thereby making it effective March 31, 2011.

On March 30, 2011, seeking the repeal of the Ordinance by referendum, the Committee presented a petition containing 1442 signatures to Farina. Farina stamped the petition as “received for review but not filed.” On April 1, 2011, Farina notified the Committee in writing:

On March 30, 2011, my office received documents purporting to be a petition for referendum seeking to repeal Ordinance (Z—88): AN ORDINANCE AMENDING CERTAIN PROVISIONS CHAPTER 155 OF THE CITY CODE ENTITLED “RENT CONTROL.” The documents served upon this office only reflected 1,442 signatures on the face of the “petition.” Please be advised that the last election where members of the General Assembly were elected was November 3, 2009. At the November 3, 2009 election, there were 13,112 total votes cast in the City of Hoboken.
The documents submitted upon this office only include 1,442 signatures, which does not meet the 15% threshold required for a properly filed petition for referendum pursuant to N.J.S.A 40:69A-185. Due to the fact that your original documents as originally presented to this office did not contain a sufficient number of signatures to constitute a properly filed petition for referendum, I refuse to accept your documents as a properly filed petition for referendum. I hereby return your originally submitted documents as unfiled, and will not keep a copy of same.[3]

By letter dated April 6, 2011, the Committee protested Farina’s action, arguing he had no authority to refuse to file the petition. Further, the Committee contended that the Faulkner Act obligated Farina to undertake certain actions, including specifying how many of the 1442 signatures submitted were valid, and providing the Committee with the exact number of valid signatures needed to make the petition sufficient.

On April 11, 2011, Farina responded that the petition was not accepted because it was “facially defective.” That same day, the Committee submitted a supplementary petition which included 872 additional signatures which, if accepted with the original filing, would bring the total number of signatures submitted to 2314. [171]*171Farina noted on the supplemental petition “received for review but not filed.” Farina informed the Committee:

This is to certify that on April 11, 2011 the Committee of the Petitioners attempted to file a supplementary petition containing 40 petition pages with 40 attached Affidavits of Circulator and 872 signatures as an amendment to the referendum petition filed by the Committee of the Petitioners with the City Clerk on March 30, 2011 which protested against the passage by the City Council and approval by the Mayor of Ordinance Z-88 and that the supplementary petition was not accepted by the Hoboken City Clerk as a filed amendment to the March 30, 2011 referendum petition as required by N.J.SA 40:69A-185 et seq., in particular as required by N.J.SA 40:69A-188. Amendment of Initiative or Referendum Petition.

In a subsequent letter, dated April 14, 2011, Farina stated that the petition “was presented upon this office with no cover letter or indication of what it purported to be other than a petition for referendum that reflected 872 signatures.” He further stated:

Pursuant to N.J.SA 40:69A-185, the time for filing a petition for the power of a referendum for an ordinance must be filed “twenty days after such final passage and approval of such ordinance....” The (20) twenty day time period for the aforementioned ordinance expired on March 31, 2011. Therefore, this documentation is hereby returned to you as an unified and untimely petition for referendum.

As a result of Farina’s actions, plaintiffs filed a verified complaint and order to show cause on May 4, 2011. The complaint consisted of five counts. Count one requested the court find Farina violated the Faulkner Act by failing to process their petition, attempting to “unfile” the petition, and by refusing to accept their supplementary petition. Count two sought an injunction prohibiting Hoboken from enforcing the Ordinance until the petition was withdrawn or until the Ordinance was repealed by voters. Count three sought to estop Farina from examining whether the 1442 signatures on the original petition were those of qualified voters and from determining whether the petition had “some other defect.” Count four requested the court find that Farina had waived his right to examine the sufficiency of the supplementary petition. Count five alleged violations of the NJCRA and specifically requested attorneys’ fees pursuant to N.J.S.A. 10:6-2(f).

On June 14, 2011, the trial judge partially granted plaintiffs’ order to show cause and denied defendants’ cross-motion to dis[172]*172miss.

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Related

Daniel Tumpson v. James Farina (072813)
95 A.3d 210 (Supreme Court of New Jersey, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
67 A.3d 660, 431 N.J. Super. 164, 2013 WL 2319364, 2013 N.J. Super. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tumpson-v-farina-njsuperctappdiv-2013.