In the Matter of an Initiative Petition for the Adoption of An Ordinance to Amend the Jackson Township Administrative Code Mayor

and Township Council of Jackson Township, Petitioners-Respondents - and Nicolas Antonoff, Catherine V. Giancola, Richard F. Davidson, Raymond J. Cattonar, and Roger E. Downing, Interested PartiesAppellants

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION Docket No. A-517-13T1 On appeal from the Superior Court of New Jersey, Law Division, Ocean County, No. OCN-L-1217-13 Sat below: Hon. Craig Wellerson, J.S.C.

REPLY BRIEF OF APPELLANTS

ZAZZALI, FAGELLA, NOWAK, KLEINBAUM & FRIEDMAN One Riverfront Plaza, Suite 320 Newark, New Jersey 07102 (973) 623-1822 fkomuves@zazzali-law.com NEW JERSEY APPLESEED PUBLIC INTEREST LAW CENTER, INC. 744 Broad Street, Suite 1525 Newark, New Jersey 07102 (973) 735-0523 steinhagen_pilc@yahoo.com Co-counsel for Interested Parties Nicolas Antonoff, Catherine V. Giancola, Richard F. Davidson, Raymond J. Cattonar, and Roger E. Downing FLAVIO L. KOMUVES, ESQ., No. 1889-1997 RENE STEINHAGEN, ESQ., No. 3869-1989 On the Brief

TABLE OF CONTENTS Page No.

TABLE OF AUTHORITIES...........................................ii PRELIMINARY STATEMENT...........................................1 LEGAL ARGUMENT I. A RULE GIVING TRIAL COURTS JURISDICTION OVER PRE-ELECTION CHALLENGES TO PARTS OF CITIZEN INITIATIVES AND REFERENDUMS IS UNSUPPORTED BY THE CASE LAW AND UNFAIRLY BURDENS AND ENDANGERS CITIZENS RIGHTS...........................................2 THE COURT SHOULD HAVE ENFORCED THE ORDINANCES SEVERABILITY CLAUSE RATHER THAN TAKING THE PATH OF INVALIDATING THE ENTIRE ORDINANCE, THUS IMPINGING ON VOTER RIGHTS..................................5

II.

CONCLUSION.....................................................11

TABLE OF AUTHORITIES CASES Page No(s).

Concord Ins. Co. v. Miles, 118 N.J. Super. 551 (App. Div. 1972)...........................................7 In re Ordinance 04-75, 192 N.J. 446 (2007)......................5 Reynolds v. Sims, 377 U.S. 563 (1963)..........................10 Ringwood Solid Waste Mgmt. Auth. v. Ringwood, 131 N.J. Super. 61 (Law Div. 1974).........................5 Yick Wo v. Hopkins, 118 U.S. 356 (1886)........................10 STATUTES N.J.S.A. 18A:18A-11.............................................6 N.J.S.A. 40A:65-7(a)(3).........................................6 OTHER AUTHORITY R. 4:69-1 et seq................................................4

ii

PRELIMINARY STATEMENT The argument of the municipal plaintiffs (hereinafter, the Township), voting rights defending of the trial Township courts deprivation is of the and

Jackson

citizens,

mistaken

internally inconsistent. Extrapolating from cases where courts have found citizen proposals to be jurisdictionally void, on their face and in their entire entirety, proposal the can Township be says that even invalidation though only of the

pronounced

partial

invalidity is alleged and it is clear that the subject of the ordinance is proper for initiative and referendum. the Township to says that where and there is no At bottom, made or

challenge of a

upheld

significant

independent

portions

citizen

initiative, the court must deprive the voters of having their say on all parts of that ordinance, even the legal ones. Township actually The

has the temerity to defend this course of

action as the one more consistent with judicial restraint. In reality, the Township misstates the role of election courts, policies ignores behind the statutes and precedents, and disregards the

citizen

referendum,

expresses

complete

disdain for protecting the franchise. The Township conceded, and the trial judge agreed, that Jacksons citizens had the right to create a Department of Law so that its legal needs were handled by in-house employees

rather than by professionals retained on a contractual basis. (T3, 20-21). appeal. Therefore, the issues presented are twofold. the court wrongly take jurisdiction of this First, did pre-election The Township has not challenged this conclusion on

challenge, when the moving party contested the validity of only a single, discrete, and severable subparagraph of the ordinance? Second, if the court has jurisdiction to hear such a challenge, did the court err by not enforcing the unambiguous severability clause of the ordinance? That is, did the court overreach by

impinging on the rights of lawmakers and voters more than was necessary in light of the evidence adduced? that the answer to both questions is yes. Appellants assert

Because the answer to

the first question is yes, the judgment should be vacated, with instructions to allow the question as presented in the petition to proceed as written. Alternatively, because the answer to the

second question is also yes, the judgment should be reversed with instructions to modify the question and direct its

placement on the ballot. I. A RULE GIVING TRIAL COURTS JURISDICTION OVER PREELECTION CHALLENGES TO PARTS OF CITIZEN INITIATIVES AND REFERENDUMS IS UNSUPPORTED BY THE CASE LAW AND UNFAIRLY BURDENS AND ENDANGERS CITIZENS RIGHTS.

The Township vigorously presses the issue that the trial court had jurisdiction to entertain this pre-election challenge

to the ordinance.

However, in every single case cited by the

Township (see Pb26-33), there was a claim that the ordinance was invalid on its face and in its entirety or was not a proper subject of referendum. not one that allows There is not a single New Jersey case a pre-election judicial ruling on a

referendum if only partial invalidity is claimed. should be loath to authorize such challenges now.

This Court To emphasize

what was said in Appellants moving brief, at Db36, [a] lawsuit to strike an initiative or referendum from a ballot is one of the deadliest weapons in the arsenal of the measures political opponents. With increasing frequency, opponents of ballot

proposals are finding the weapon irresistible and are suing to stop elections. Id. (quotation omitted).

If the Court authorizes this kind of pre-election challenge that alleges partial invalidity of a citizen proposal, no matter how insignificant, it will be handing municipalities or

opponents of citizens groups proposals, a powerful weapon: the ability to tie up an ordinance in court, before an election, and often on an accelerated basis. Every time our courts have

stricken an initiative or referendum for its content, it has been because what it proposed was so far beyond the pale of any acceptable form of citizen action, that the ordinance was void jurisdictionally, and in its entirety. here. That is not the case

The Township conceded and the trial court affirmed the 3

citizens ability, by initiative, to form an in-house Department of Law, to regulate its size, the qualifications The of its only

employees, its powers, and its duties.

Townships

objection was to the provision in the proposed ordinance that would have permitted the Jackson Board of Education (which has a coterminous tax base with the Township) to receive the benefits of the newly-created department without entering into a Title 18A Shared Services Agreement. Enlarging the courts power so

it can hear pre-election challenges that allege only partial invalidity powers of of an ordinance creates on unnecessary residents of risks to the Act

citizens

conferred

Faulkner

municipalities. In fact, if such pre-election challenges alleging partial invalidity are allowed, practically any government entity,

private individual, or business could presumably find one flaw in an otherwise permissible act of legislation (that is also a proper subject of initiative), fund contesting litigation, and force its supporters to go through the time and expense of

defending it before there is even a campaign or a vote on the matter.1 This is not consistent with an expansive right of

The disallowance of pre-election challenges to portions of an ordinance would in no way detract from the ability of any interested party to challenge the ordinance, in whole or in part, after it is enacted, by bringing an action in lieu of prerogative writs. See R. 4:69-1 et seq. Indeed, that is when challenges to legislation should be brought: after ordinances 4

referendum,

nor

is

it

consistent

with

rule

of

liberality

toward the acts of citizen lawmakers.

In short, allowing such

cases would be inconsistent with the Supreme Courts ruling in In re Ordinance 04-75, 192 N.J. 446, 459 (2007), that calls for citizens initiative referendum rights to be enforced liberally. II. THE COURT SHOULD HAVE ENFORCED THE ORDINANCES SEVERABILITY CLAUSE RATHER THAN TAKING THE PATH OF INVALIDATING THE ENTIRE ORDINANCE, THUS IMPINGING ON VOTER RIGHTS.

In its brief, the Township affirmatively posits that the people have the right to propose their own laws and to vote upon them as proposed without having the same altered in any manner whatsoever by any person or persons including a judge. (Pb18).

This lofty-sounding principle is then undermined as the Township simultaneously argues two inconsistent points. First, the

Township says that assuming a judge takes jurisdiction over a proposed ordinance before the voters pass or reject it, the judge may strike the entire ordinance, but lacks the authority to temper that power by striking only the offending portions of the ordinance (Pb23-24). Second, even if the people exercise

their right to propose ordinances by including a prominent and robust severability clause, as was the case in the ordinance are passed. The ability to challenge any distasteful legislative proposal before it becomes law wastes the time of courts and litigants, and constitutes improper judicial interference with the separation of powers. Ringwood Solid Waste Mgmt. Auth. v. Ringwood, 131 N.J. Super. 61 (Law Div. 1974). 5

included in the circulated petition papers herein, (Da26, 4), judges can actually alter[] the same by ignoring such clause. (Pb17-19). The Townships argument collapses under its own

inconsistencies.

The simple fact is that voters in Faulkner Act

municipalities have the right to propose ordinances, may include severability clauses in those ordinances, and courts are dutybound to enforce them as written. The Townships argument that

a court can strike down an entire proposed ordinance for one minor flaw2 is inconsistent with the proposition that the people have the right to propose a their own laws (Pb18), a free of

interference

from

meddling

party

seeking

premature

declaratory judgment.
2

Critically, the flaw that the trial court found in subparagraph D(9) was not that the Township and Board of Education could not share legal departments as a matter of law, nor that the voters could not express such a policy in an ordinance. Rather, the issue was whether such an arrangement required the assent of both boards in the form of a shared service agreement that would be implemented by resolution. Pursuant to N.J.S.A. 18A:11-11: The boards of education of two or more districts may provide jointly by agreement for the provision and performance of goods and services for their respective districts, or one or more boards of education may provide for such provision or performance of goods or services by joint agreement with the governing body of any municipality or county. [emphasis added]. In this shared-services law found in Title 18A, which governs agreements to which a school district is a party, there is no requirement for the fair allocation of a services costs among participating government entities, as there is in the Title 40A shared services law. See N.J.S.A. 40A:65-7(a)(3). 6

There

is

little

doubt

that

the

Townships

arguments

on

appeal pay lip service to the ideal that the voting public has the right to propose legislation without interference whether legislative or judicial, for any reason. (Pb18). However,

after stating this principle, the remainder of its argument is a studied effort to perniciously undermine that aspiration. For one thing, the Township has nothing meaningful to say about Appellants argument that when a judge strikes either an entire law, or only part of a law, he rightly acts with judicial restraint when he chooses partial invalidation. Township actually has the temerity to In fact, the judicial

define

restraint as a situation where courts may strike and must strike an entire law because of one alleged minor flaw. To the Township, striking judicial more restraint than means more (Pb24). intrusive on

action,

language

necessary;

impinging

voting rights to a greater degree; and infringing on legislative prerogatives to a greater extent. Defining judicial restraint

in this manner approaches Alice-in-Wonderland levels of changing the meaning of words solely to fit ones ends. As the plaintiff in the declaratory judgment action, the Township bore the burden of proof in showing that the ordinance was invalid. Concord Ins. Co. v. Miles, 118 N.J. Super. 551,

555 (App. Div. 1972) (the person seeking the declaratory relief must prove his case, as must any plaintiff, and the burden of 7

proof lies with him). an additional burden

In particular, here, the Townships had to that plead and prove D(9) the was following defective,

proposition:

Assuming

subparagraph

should the remaining parts of the ordinance survive in face of the severability clause to which over 1,000 petition signers manifested assent? Rather than satisfying that burden, what the Township

offered to the trial court, and now again to this Court, is speculation, conjecture, and guesswork. As Appellants showed in

their initial brief, the Township was unable to produce a single witness or declarant to support its view that even one person would have declined to sign the initiative petition without

subparagraph D(9) in the text of the proposed ordinance and its accompanying mention in the question. The trial judge recognized that based on the record before him, he could not answer the question of whether even one signer would have refused to sign without subparagraph D(9). (quoting from the trial judges ruling). See Pb18

However, the judge

simply did not appreciate the significance of his own finding. When the Township has the burden of proof, and the trial judge asks whether there is proof that even one voter would have

declined to sign the petition, and then finds that question to be unanswerable based on the record before him, the courts role is at an end. At that point, since the Township bore the 8

burden

of

proof,

its

case

should

have

been

dismissed.

The

Township, as

plaintiff, could not prevail when it could not

prove this fundamental aspect of its case, namely, that even one single voter would have refused to sign the petition. On the de

novo review applied by this Court, the trial judges conclusion on this point should be reversed. Unable to convince the trial judge of its position about probable signer intent, the Township now urges this Court on appeal to find as a matter of fact that the petition-gathering efforts would have failed without subparagraph D(9). It

rhetorically asks whether, without subparagraph D(9), would all 764 have signed it? but does not answer the question with any cognizable evidence. Continuing, the Township offers more

guesses, instead of evidence: Severability will alter the intent of the signators, perhaps substantially for some and certainly at a minimum level for all (Pb19); Severability would certainly not be something that was intended by many if not most of the signers. (Pb25). Speculation goes on and on, and ignores the fact that the issue of severability was placed before each and every voter before they signed the petition. Where is the written or live

testimony of even one witness who swore that she would have declined to sign the petition without subparagraph D(9)? Where

is the competent evidence that this change was substantial for 9

any voter or even minimal for any voter? the Court to that ignore openly hundreds included of a signators

The Township asks who proposed clause. an It

ordinance

severability

requests affirmance based on their guess that the signers would have acted otherwise. It makes these requests, even though it

bears the burden of proof and has no evidence whatsoever to support its claims. evidence. It The Townships request to this court isnt qualifies as argument. Certainly the

barely

Township could have sought such statements, but it decided to forego discovery. (Pb3). It is bound by that choice: it came

before the trial court with no evidence to support its theory, and asks that its utter failure to prove its case be forgiven by this Court with an affirmance. Speculation of this kind can never support any kind of trial court the judgment. basis of for But when, the as here, to this vote speculation a right

becomes

denying

right and

preservative Reynolds v.

all

other U.S.

civil 563

constitutional (quoting Yick

rights, Wo v.

Sims,

377

(1963)

Hopkins, 118 U.S. 356, 370 (1886)), it is completely untenable. When the consequence is a violation of the voting rights of thousands of Jackson citizens, such a judgment must be based on more than speculation. Because that was the nature of the trial

courts decision to ignore a valid severance clause to strike

10

down an entire ordinance, the judgment under review should be reversed. CONCLUSION For these reasons and the reasons in Appellants opening brief, the Law Divisions ruling should be vacated as an

inappropriate exercise of jurisdiction, over an unripe dispute regarding a proposed ordinance that was clearly a proper subject of initiative and referendum. If decided on this basis, the

question as initially proposed by petitioners would be allowed to proceed and submitted to the voters at the next general

election.

Alternatively, the trial courts judgment should be

reversed as an incorrect ruling on the severability of citizen initiative petitions, and remanded with instructions to sever the one allegedly flawed section of the Ordinance, correct the ballot question and interpretive statement, and order the

question submitted to the voters at the next general election. Respectfully submitted, ZAZZALI, FAGELLA, NOWAK, KLEINBAUM & FRIEDMAN By:_________________________ FLAVIO L. KOMUVES Dated: February 14, 2014 NEW JERSEY APPLESEED PUBLIC INTEREST LAW INC.

CENTER,

By: ________________________ RENE STEINHAGEN

11