Hon. Dana L. Redd v. Vance Bowman(073567) , 223 N.J. 87 ( 2015 )

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.)
Hon. Dana L. Redd v. Vance Bowman (A-71/72/73-13) (073567)
Argued April 28, 2015 -- Decided August 11, 2015
PATTERSON, J., writing for a unanimous Court.
The issue in this appeal is whether an initiative petition filed under the Optional Municipal Charter Law,
N.J.S.A. 40:69A-1 to -210, known as the Faulkner Act, requiring the City of Camden to create and maintain its own
police force, and enjoining the municipality from replacing its police force with a countywide police force,
unlawfully restricts the municipality’s legislative authority or is preempted by state fiscal statutes.
Since 1961, the City of Camden has operated under a Mayor-Council form of government under the
Faulkner Act, pursuant to N.J.S.A. 40:69A-32. The City of Camden’s transition from municipal to county police
services followed more than a decade of State oversight of the City’s troubled fiscal affairs in a pilot program
conducted pursuant to the Municipal Rehabilitation and Economic Recovery Act (MRERA), in conjunction with
several statutes governing municipal finance: the Special Municipal Aid Act (SMAA), the Transitional Aid to
Localities program (TAL), and the Local Budget Law (LBL).
On August 25, 2011, citing the City’s fiscal distress and the need to reduce police-related expenditures, the
City of Camden, the County, and the Department of Community Affairs entered into a Memorandum of
Understanding in which they agreed to a series of steps leading to the formation of a Camden County Police
Department. The countywide police force’s Metro Division would replace the services provided by the municipal
police department. The Camden City Council approved the immediate implementation of the terms of the August
25, 2011, Memorandum of Understanding in a Resolution dated December 27, 2011.
Defendants, a group of City voters acting as a Committee of Petitioners (Committee), opposed the
regionalization of the City’s police services. On April 11, 2012, the Committee, invoking the Faulkner Act,
submitted an initiative petition for the adoption of a proposed ordinance that would have required the City of
Camden to create and maintain “in continued existence” its own police force, enjoining the City from disbanding its
municipal police force and replacing it with a regionalized or countywide police force. The Committee obtained, on
its petition, the number of voter signatures required by the Faulkner Act. It sought to have its initiated ordinance
certified by the municipal clerk, considered by the City Council, and, if not enacted by the Council, placed on the
ballot for voter approval in the 2012 General Election.
On May 2, 2012, plaintiffs Mayor Dana L. Redd (Mayor Redd), Camden’s Mayor, and Camden’s Council
President Francisco Moran (Council President Moran) filed a complaint seeking to enjoin the Committee’s Faulkner
Act initiative. Mayor Redd and Council President Moran argued that the proposed initiated ordinance unlawfully
restrained the City’s legislative power and that it was preempted by MRERA, SMAA, TAL, LBL, and the Police
Force Statute, N.J.S.A. 40A:14-118. On June 12, 2012, the trial court issued an opinion and order prohibiting the
municipal clerk from certifying the petition to the Camden City Council, holding that the initiated ordinance would
create an undue restraint on future legislation. The trial court rejected the plaintiffs’ argument that the ordinance
unduly restricted the municipality’s exclusive statutory authority under the Police Force Statute. The court,
however, did not reach the question whether MRERA or state fiscal statutes preempted the Faulkner Act initiative.
The Committee appealed. While the Committee’s appeal was pending, Camden and the County took the
final steps to regionalize Camden’s police services by formally establishing the Camden County Police Department
and disbanding the Camden Police Department. On May 1, 2013, the Camden Metro Division of the County Police
Department began providing police services to the City of Camden. It continues to provide those services today.
The Appellate Division reversed the determination of the trial court, holding that the initiated ordinance did
1
not constitute an improper divestment of the municipal governing body’s legislative power. 433 N.J. Super. 178
(2013). On the question of preemption, the panel concurred with Mayor Redd and Council President Moran that
MRERA and the state fiscal statutes suggested a legislative intent to fully occupy the field of municipal finance in
Camden. The Appellate Division remanded the case to the trial court for further consideration of the issue of
preemption.
The Supreme Court granted the parties’ petitions and cross-petition for certification. 217 N.J. 293 (2014).
HELD: The Faulkner Act initiated, proposed ordinance does not constitute an unlawful restraint on the future
exercise of the City of Camden’s legislative power and is not preempted by the Municipal Rehabilitation and
Economic Recovery Act or any of the state’s fiscal statutes. However, the ordinance, as drafted, is out of date,
inaccurate, and misleading. The challenge to the police reorganization must start anew with an ordinance that
reflects the facts as they now stand.
1. Mayor Redd and Council President Moran urge the Court to dismiss the appeal as moot on the ground that
Camden has already disbanded its Police Department and has contracted to receive its police services from the
County police force. An issue is “moot when our decision sought in a matter, when rendered, can have no practical
effect on the existing controversy.” Deutsche Bank Nat’l Trust Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App.
Div. 2011). The issue in this case is justiciable; it can and should be resolved by this Court. The remedy sought by
Mayor Redd and Council President Moran can still be granted or denied. Consequently, the Court declines to
dismiss this appeal as moot. (pp. 15,18)
2. The Court concurs with the Appellate Division that the Committee’s Faulkner Act initiative petition does not
constitute an unlawful restraint on the Council’s future exercise of its legislative power. In the absence of specific
authorization from the Legislature, a governing body cannot “divest its successors of legislative power.” Redd,
supra, 433 N.J. Super. at 188-89. In the Faulkner Act, however, the Legislature has clearly expressed an intent to
effect a limited divestment of one aspect of the governing body’s legislative power. The Legislature determined
that, for a period of three years, an ordinance passed by either initiative or referendum may be amended or repealed
only by voter action. By virtue of this short-term constraint, which would temporarily limit the authority of
Camden’s current and successor legislatures in the event that the Committee’s initiated ordinance were adopted, the
ordinance would not constitute an improper restraint on future legislative authority. (pp. 18-24)
3. In Overlook Terrace Management Corp. v. Rent Control Board of West New York, 71 N.J. 451, 461-462 (1976),
this Court set forth a five-factor test for determining whether a state law preempts a municipal ordinance. In a
preemption analysis, the initial question is “whether the field or subject matter in which the ordinance operates,
including its effects, is the same as that in which the State has acted.” Id. at 461. The preemption standard of
Overlook is consistent with the principles stated in two recent opinions in which this Court rejected challenges to
referendum petitions submitted pursuant to the Faulkner Act, In re Petition for Referendum on Trenton Ordinance
09-02, 201 N.J. 349 (2010), and In re Referendum Petition to Repeal Ordinance 04-75, 192 N.J. 446 (2007). The
Memorandum of Understanding prompting the regionalization of the Camden police force is rooted most directly
and specifically in the Municipal Rehabilitation and Economic Recovery Act (MRERA), which reaffirms Camden’s
status as a Faulkner Act municipality, and by inference, the initiative and referendum procedure at the Act’s core. In
accordance with the standard set forth in Overlook, and in accord with Ordinance 04-75 and Trenton Ordinance 09-
02, the Legislature’s intent is clear -- to preserve the Faulkner Act procedures notwithstanding Camden’s status as a
qualified municipality under MRERA. MRERA does not preempt the power of initiative conferred by the
Legislature in the Faulkner Act. Similarly, nothing in the Special Municipal Aid Act, the Transitional Aid to
Localities program, the Local Budget Law, or the Police Force Statute precludes the voter initiative and referendum
procedures set forth in the Faulkner Act. Accordingly, the Faulkner Act initiated, proposed ordinance at issue here
is not invalid by virtue of preemption. (pp. 24-38)
4. Although the Municipal Rehabilitation and Economic Recovery Act does not preempt the Faulkner Act as
applied here, it clearly expresses the Legislature’s intent that during the “economic recovery term” as defined in
N.J.S.A. 52:27BBB-3 and -6, any duly authorized ordinance -- whether passed by vote of the council or presented to
the voters by initiative -- is subject to the authority granted to the Commissioner of Community Affairs, and to the
Commissioner’s veto authority. If an initiated ordinance is submitted to the voters of Camden following the
Commissioner’s veto, the voters should be informed in an interpretive statement about the Commissioner’s veto and
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the reasons therefore, including, if applicable, the law enforcement and fiscal consequences that would follow the
adoption of the ordinance. (pp. 39-43)
5. Although a Faulkner Act initiated petition challenging the Camden police reorganization is not invalid as a
divestment of legislative power or by virtue of preemption, the ordinance at issue in this case may not be submitted
to the voters of Camden. By virtue of the disbanding of Camden’s municipal police force, the creation of the
County Police Department and two years of police services provided to the citizens of Camden by the County
Department’s Metro Division, the ordinance in this appeal is out of date, inaccurate, and misleading. Submission of
the ordinance to the voters, as drafted, would undermine the objectives of the Faulkner Act, which clearly envisions
that an initiated ordinance appear on the ballot in precisely the same form in which it was proposed. Nor can the
ordinance be salvaged by an interpretative statement, which is intended to explain the question to voters, not to
revise it after the fact. Thus, the Committee’s challenge to the police reorganization must start anew with an
ordinance that reflects the facts as they now stand. (pp. 43-47)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART. The
matter is REMANDED to the trial court for the entry of judgment directing the Camden Municipal Clerk not to
certify the Committee’s ordinance pursuant to N.J.S.A. 40:69A-187.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.
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SUPREME COURT OF NEW JERSEY
A-71/72/73 September Term 2013
073567
HONORABLE DANA L. REDD, Camden
City Mayor, and HONORABLE
FRANCISCO MORAN, Camden City
Council President,
Plaintiffs-Appellants
and Cross-Respondents,
v.
VANCE BOWMAN, LARRY GILLIAMS,
EULISIS DELGADO, MARY I. CORTES,
and ROBERT DAVIS, individually and
collectively as the Committee of
Petitioners,
Defendants-Respondents
and Cross-Appellants,
and
LUIS PASTORIZA, Clerk of the City of
Camden, JOSEPH RIPA, Clerk of Camden
County, PHYLLIS PEARL, Camden County
Superintendent of Elections, CAMDEN
COUNTY BOARD OF ELECTIONS, and
CAMDEN CITY COUNCIL,
Defendants.
Argued April 28, 2015 – Decided August 11, 2015
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 433 N.J. Super. 178 (App. Div.
2013).
John C. Eastlack, Jr., argued the cause for
appellant and cross-respondent Honorable
Dana L. Redd, Camden City Mayor (Weir &
Partners, attorneys; Mr. Eastlack and Wesley
L. Fenza, on the briefs).
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Jay J. Blumberg argued the cause for
appellant and cross-respondent Honorable
Francisco Moran, Camden City Council
President (Blumberg & Wolk, attorneys).
Anthony Valenti argued the cause for
respondents and cross-appellants Larry
Gilliams, Eulisis Delgado, Mary I. Cortes,
and Robert Davis (McDowell, Posternock,
Apell & Detrick, attorneys).
Todd A. Wigder, Deputy Attorney General,
argued the cause for amicus curiae New
Jersey Department of Community Affairs (John
J. Hoffman, Acting Attorney General of New
Jersey, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel).
Renée W. Steinhagen argued the cause for
amicus curiae New Jersey Appleseed Public
Interest Law Center.
JUSTICE PATTERSON delivered the opinion of the Court.
This appeal arises from a challenge by initiative to the
City of Camden’s decision to disband its municipal police
department and to contract with Camden County for the delivery
of police services to the City of Camden by a countywide police
department. The City of Camden’s transition from municipal to
county police services followed more than a decade of State
oversight of the City’s fiscal affairs in a pilot program
conducted pursuant to the Municipal Rehabilitation and Economic
Recovery Act (MRERA), N.J.S.A. 52:27BBB-1 to -79, in conjunction
with several statutes governing municipal finance: the Special
Municipal Aid Act (SMAA), N.J.S.A. 52:27D-118.24 to -118.31, the
2
Transitional Aid to Localities program (TAL), N.J.S.A. 52:27D-
118.42a, and the Local Budget Law (LBL), N.J.S.A. 40A:4-1 to -
89. Citing the need to reduce police-related expenditures and
increase police presence in the City of Camden, City officials
entered an agreement with the State and Camden County to replace
the services provided by the municipal police department with
those of the countywide police force’s Metro Division.
Defendants, a group of City voters acting as a Committee of
Petitioners (Committee), attempted to block the regionalization
of the City’s police services. The Committee invoked the
Optional Municipal Charter Law, N.J.S.A. 40:69A-1 to -210, known
as the Faulkner Act, which provides for initiative and
referendum in accordance with procedures set forth in the
statute. The Committee submitted an initiative petition for the
adoption of a proposed ordinance that would have required the
City of Camden to create and maintain its own police force, and
would have enjoined the City from disbanding its municipal
police force and replacing it with a regionalized or countywide
police force. The Committee obtained, on its petition, the
number of voter signatures required by the Faulkner Act. It
sought to have its initiated ordinance certified by the
municipal clerk, considered by the City Council, and, if not
enacted by the Council, placed on the ballot for voter approval
in the 2012 General Election.
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Plaintiffs Mayor Dana L. Redd (Mayor Redd), Camden’s Mayor,
and Camden’s Council President Francisco Moran (Council
President Moran) filed a complaint seeking to enjoin the
Committee’s Faulkner Act initiative. Mayor Redd and Council
President Moran argued that the proposed initiated ordinance
unlawfully restrained the City’s legislative power and that it
was preempted by MRERA, SMAA, TAL, LBL, and the Police Force
Statute, N.J.S.A. 40A:14-118.
The trial court found that the proposed ordinance
constituted an invalid divestment of the City’s legislative
authority. The Appellate Division reversed the trial court’s
judgment and remanded for a determination whether the state
fiscal statutes preempt the proposed ordinance. Redd v. Bowman,
433 N.J. Super. 178, 198 (2013), certif. granted, 217 N.J. 293
(2014). Before the Committee’s appeal was argued in the
Appellate Division, Camden’s municipal police force was
disbanded. Since May 1, 2013, the Camden County Police
Department, Metro Division, has provided police services to the
City of Camden.
We granted the parties’ petitions and cross-petition for
certification. Redd, supra, 217 N.J. 293. As a threshold
matter, we decline to dismiss this appeal as moot. Although we
concur with the Appellate Division that the proposed ordinance
does not constitute an improper divestment of the municipal
4
governing body’s legislative power, we disagree with the panel’s
remand of the case for further inquiry into the question of
preemption. We find no evidence of a legislative intent to
preempt the initiative and referendum procedure set forth in the
Faulkner Act in either the municipal finance or police statutes
cited in this appeal. Instead, we discern a legislative intent
in some of the statutes to retain the Faulkner Act’s procedures,
including its initiative and referendum provisions. Thus, the
Committee’s Faulkner Act initiative is not preempted.
However, we note that one component of MRERA, N.J.S.A.
52:27BBB-23(a)(2), affords to the Commissioner of the Department
of Community Affairs (Department) a veto power over ordinances
passed by the council, subject to override. We hold that any
initiative and referendum process affecting Camden’s compliance
with MRERA must be harmonized with that veto provision, and as
such, when the voters consider an ordinance that has been vetoed
pursuant to MRERA, they must be informed about the reasons for
the Commissioner’s veto.
Notwithstanding our holdings that the proposed ordinance
neither effected an unlawful divestment of legislative power nor
was preempted by state statutes, the relief sought by the
Committee in its 2012 petition may not be granted in a manner
consistent with the Faulkner Act. The Committee’s initiated
ordinance would have prevented Camden officials from disbanding
5
the City of Camden’s municipal police department and
regionalizing its police force in a county department. Because
the reorganization that the ordinance was intended to forestall
was completed more than two years ago, the ordinance as drafted
is inconsistent with current circumstances. Accordingly, the
ordinance may no longer be supported by all of the citizens who
backed it with their signatures, and it cannot meaningfully be
evaluated by the voters. The presence of an out-of-date
ordinance on the ballot would contravene the Faulkner Act’s
objective that voters be presented with a clear, understandable
proposed ordinance that they may accept or reject as they see
fit.
Accordingly, we affirm in part and reverse in part the
judgment of the Appellate Division and remand to the trial court
for entry of a judgment barring the Camden Municipal Clerk from
certifying the Committee’s petition. If the Committee seeks to
challenge the Camden police reorganization under the Faulkner
Act, it may do so with a new petition and a revised ordinance
that reflects the current status of Camden’s police services.
I.
A.
Since 1961, Camden has operated under a Mayor-Council form
of government under the Faulkner Act, pursuant to N.J.S.A.
40:69A-32. McCartney v. Franco, 82 N.J. Super. 570, 576 (Law
6
Div. 1964), aff’d, 87 N.J. Super. 292 (App. Div. 1965). In a
Mayor-Council Faulkner Act municipality, subject to certain
exceptions identified in the statute, “administrative or
executive functions assigned by general law to the governing
body [are] exercised by the mayor, and any legislative and
investigative functions assigned by general law to the governing
body are exercised by the council.” N.J.S.A. 40:69A-32(b).
“Those functions shall be exercised pursuant to the procedures
set forth in this plan of government, unless other procedures
are required by the specific terms of the general law.” Ibid.
Among those applicable procedures is the initiative provision of
the Faulkner Act, under which “[t]he voters of any municipality
may propose any ordinance and may adopt or reject the same at
the polls.” N.J.S.A. 40:69A-184.
In 2002, recognizing that “[t]here exists in certain
municipalities a continuing state of fiscal distress which
endures despite the imposition of a series of measures
authorized pursuant to law,” the Legislature enacted MRERA. L.
2002, c. 43 (codified at N.J.S.A. 52:27BBB-2(a)). Pursuant to
MRERA, the State funded projects in Camden under the supervision
of a State Economic Recovery Board and a State-appointed Chief
Operating Officer (COO). See N.J.S.A. 52:27BBB-6, -7, -36.
On October 28, 2002, pursuant to MRERA, the State assumed
comprehensive oversight of Camden’s financial, fiscal, and
7
budgetary affairs. The State’s oversight of Camden’s finances
proceeded in two stages prescribed by MRERA. During the
“rehabilitation” period, which concluded with the expiration of
the COO’s term on January 18, 2010, the COO’s authority
superseded that of Gwendolyn Faison, the former Mayor, and Mayor
Redd, who was elected in 2009. See N.J.S.A. 52:27BBB-6, -7.
Thereafter, during the five-year “recovery” period, extended by
statute to ten years in 2014, L. 2014, c. 60, Mayor Redd has
exercised the administrative and executive powers of her office.
See N.J.S.A. 52:27BBB-3.
In addition to the extraordinary fiscal constraints imposed
by MRERA, Camden has operated subject to the terms of the LBL,
and two statutes governing State aid to municipalities, SMAA and
TAL. See N.J.S.A. 40A:4-1 to -89 (LBL); N.J.S.A. 52:27D-118.24
to -118.31 (SMAA); N.J.S.A. 52:27D-118.42a (TAL). As provided
for by SMAA and TAL, Camden has applied for and received State
transitional aid during every fiscal year relevant to this case.1
Pursuant to the terms of MRERA and SMAA, the Department’s
1 The record reveals that State municipal aid funded more than
one-third of Camden’s annual budget during the period relevant
to this case. Camden’s budget for Fiscal Year 2010 was
$185,128,474.34, and the City received $67,000,000 in State
municipal aid; Camden’s budget for Fiscal Year 2011 was
$172,973,295.39, and the City received $69,000,000 in State
municipal aid; Camden’s budget for Fiscal Year 2012 was
$167,232,861.40, and the City received $61,400,000 in State
municipal aid.
8
Division of Local Government Services has required Camden to
enter into a series of Memoranda of Understanding setting forth
the requirements imposed by the State on the City of Camden as a
condition of its receipt of municipal aid. According to
Camden’s Finance Director, the City’s failure to comply with the
terms of a Memorandum of Understanding would cause the State to
reduce or terminate Camden’s receipt of municipal aid. See
N.J.S.A. 52:27D-118.29(b) (stating that State aid payments may
be withheld if “municipality fail[s] to implement fiscal
recovery measures”); see also N.J.S.A. 52:27D-118.42a(a).
As Camden’s municipal government and the State worked to
restore the City to fiscal solvency, the Camden Police
Department was subject to particular scrutiny. In Fiscal Year
2012, police-related expenditures accounted for approximately
one-third of the City’s total budget expenditures, and during
Fiscal Years 2010, 2011, and 2012, Police Department salaries
and wages comprised almost one-half of the total salaries and
wages paid by Camden to its employees. On January 18, 2011,
Camden conducted a layoff of 168 officers. In the wake of the
layoff, the police presence on Camden’s streets was far short of
the 400-officer force recommended by the City’s security
consultant.
On August 9, 2011, the Camden City Council approved a
resolution authorizing “the proper officers . . . to enter into
9
a Memorandum of Understanding with the State Department of
Community Affairs and the County of Camden to prepare a plan for
the creation of the Camden County Police Department.” On August
25, 2011, Camden, the County, and the Department entered into a
Memorandum of Understanding, in which they agreed to a series of
steps leading to the formation of a Camden County Police
Department.
The Camden City Council approved the immediate
implementation of the terms of the August 25, 2011, Memorandum
of Understanding in a Resolution dated December 27, 2011. In
that Resolution, the City Council resolved to “take all steps
necessary to finalize the immediate implementation of the
Memorandum of Understanding in furtherance of the establishment
of the Camden County Police Department.” The Council recognized
that with the formation of a Camden Metro Division of the
countywide police force, the City would “dissolve the Police
Department of the City of Camden,” and the County would “offer
the opportunity for employment in the Camden Metro Division . .
. to qualified former members of the” municipal police
department.
The City’s resolution was followed by a corresponding
resolution by the County’s Board of Chosen Freeholders,
introduced January 26, 2012, committing to “the necessary and
appropriate measures to establish the Camden County Police
10
Department.” By early 2012, planning for the regionalization of
Camden’s police services had reached an advanced stage.
B.
The Committee of Petitioners, consisting of defendants
Vance Bowman, Larry Gilliams, Eulisis Delgado, Mary I. Cortes,
and Robert Davis, opposed the creation of a County Police Force
on the ground that such a force would “simply result in less
experienced officers, who are not familiar with the City of
Camden, policing the [C]ity.” On April 11, 2012, the Committee
circulated and submitted a petition for the adoption of a
proposed ordinance pursuant to the initiative provision of the
Faulkner Act, N.J.S.A. 40:69A-184. The proposed ordinance
provided:
BE IT ORDAINED THAT: Section 87-1 of Chapter
87 of the Code of the City of Camden, is hereby
amended to read as follows:
A. There shall be created and maintained in
continued existence, in, for and by the City
of Camden, its own Police Department which
shall remain the police department for the
City of Camden and which shall consist of a
Police Director, a Chief of Police and members
and officers as shall be deemed necessary by
the governing body of the City of Camden which
shall, from time to time, determine the number
of persons, including, without limitation,
temporary officers and members in an
emergency, to be appointed to these positions,
together with their compensation, all as
provided for under N.J.S.A. 40A:14-118.
B. The City of Camden shall not disband its
police department pursuant to the creation of
11
any county wide Police Department established
by or for the County of Camden and shall not
participate or join in the creation of any
such Police Department established by or for
the County of Camden, nor participate in any
consolidation of or regionalization of police
services sought to be created by any
establishment of a county wide police
department, and shall instead continue to
maintain its own police department.
On April 20, 2012, the Camden Municipal Clerk advised the
Committee that he would move the certified petition forward as
an ordinance to be considered at the May 8, 2012, City Council
meeting.2
II.
Mayor Redd and Council President Moran commenced this
action on May 2, 2012. In their verified complaint, they sought
a declaration that the Committee’s proposed ordinance was null
and void, and entry of an order (1) enjoining the Council from
considering the ordinance, (2) the County Board of Elections
from placing it on the ballot, and (3) all officials from
enforcing the ordinance. Mayor Redd and Council President Moran
alleged that the ordinance would act as an illegal restraint on
2 The Camden Municipal Clerk determined that the petition
contained a total of 2354 signatures and that 1379 were
qualified signatures of registered voters in Camden. The
Committee thus satisfied the Faulkner Act’s requirement that a
petition seeking to exercise the power of initiative 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.” N.J.S.A. 40:69A-184.
12
the exercise of municipal legislative power delegated to the
Camden City Council by divesting successors of legislative
power, that it violated Camden’s statutory powers under N.J.S.A.
40A:14-118, and that it unduly restricted the fiscal and
budgetary authority for Camden, a power exclusively vested in
the City and State.
A week later, the trial court entered temporary restraints
enjoining the Camden Municipal Clerk from certifying or
submitting the proposed ordinance to the City Council. On June
12, 2012, the trial court issued an opinion and order
prohibiting the municipal clerk from certifying the petition to
the Camden City Council. It held that the initiated ordinance
would create an undue restraint on future legislation. The
trial court rejected the plaintiffs’ argument that the ordinance
unduly restricted the municipality’s exclusive statutory
authority under the Police Force Statute, N.J.S.A. 40A:14-118.
Citing the potential impact of its decision on a pending,
separate legal challenge to the Camden police reorganization,
the trial court did not reach the question whether MRERA or the
state fiscal statutes preempted the Faulkner Act initiative
pursued by the Committee. The Committee appealed. It initially
pursued a motion to accelerate the appeal, which was ultimately
denied by the Appellate Division.
13
While the Committee’s appeal was pending, Camden and the
County took the final steps to regionalize Camden’s police
services. Effective January 1, 2013, the County formally
established the Camden County Police Department. On April 30,
2013, the City of Camden disbanded the Camden Police Department
and permanently laid off the members of that department. On May
1, 2013, the Camden Metro Division of the County Police
Department began providing police services to the City of
Camden. It continues to provide those services today.
The Appellate Division reversed the determination of the
trial court, holding that the initiated ordinance did not
constitute an improper divestment of the municipal governing
body’s legislative power. Redd, supra, 433 N.J. Super. at 193-
94. Turning to the question of preemption, the panel concurred
with Mayor Redd and Council President Moran that MRERA and the
state fiscal statutes suggested a legislative intent to fully
occupy the field of municipal finance in Camden. Id. at 197-98.
It remanded the case to the trial court for further
consideration of the issue of preemption. Id. at 198.
We granted the petitions for certification filed by Mayor
Redd and Council President Moran, and the cross-petition for
certification filed by the Committee. Redd, supra, 217 N.J.
293. We also granted the motions of the New Jersey Appleseed
14
Public Interest Law Center (New Jersey Appleseed) and the
Department to appear as amici curiae.
III.
Mayor Redd and Council President Moran urge the Court to
either grant judgment in their favor or dismiss the appeal as
moot. They note that Camden has already disbanded its Police
Department and has contracted to receive its police services
from the County police force, an action that cannot be undone in
a reasonable manner. They contend that the Committee should
have proceeded by referendum after the Council passed an
ordinance disbanding the municipal police force, rather than
prospectively challenge Camden’s action under the initiative
procedure of the Faulkner Act.
Mayor Redd and Council President Moran argue that the trial
court was correct to find that the proposed ordinance would have
constituted an unlawful prior restraint on the legislative power
of the governing body. They assert that in light of the State’s
comprehensive supervision, regulation, and occupation of the
field with respect to Camden’s finances through MRERA, SMAA, TAL
and LBL, as well as agreements between Camden and the State, the
Committee’s Faulkner Act ordinance is preempted under the five-
part test of Overlook Terrace Management Corp. v. Rent Control
Board of West New York, 71 N.J. 451, 461-62 (1976). Moran
15
offers the additional argument that the initiated ordinance is
preempted by the Police Force Statute, N.J.S.A. 40A:14-118.
The Committee argues that the Court should not dismiss the
appeal as moot because the question of mootness was not raised
in the Appellate Division, and the question before the Court is
not moot. It observes that Camden voluntarily proceeded with
the police reorganization knowing that the Committee’s appeal
was pending. The Committee contends that, notwithstanding the
events of the past two years, the voters of Camden may vote on
the proposed ordinance because the ordinance sets standards in
general and prospective terms, and is not confusing.
Further, the Committee urges the Court to decide the
preemption issue, notwithstanding Camden’s police
reorganization, because of the potential for future Faulkner Act
challenges to the decisions of Camden’s governing body. It
dismisses the argument of Mayor Redd and Council President Moran
that a referendum, rather than an initiative, was the proper
procedure under the Faulkner Act, on the grounds that the
argument was not raised before the trial court and is wrong on
its merits. The Committee also contends that the trial court
erred when it held that the initiated ordinance would unlawfully
divest the Camden governing body of its legislative power.
Finally, the Committee challenges the Appellate Division’s
remand for consideration of the preemption issue, arguing that
16
the Legislature has not clearly stated an intention to bar
Faulkner Act challenges to actions by the Camden governing body
with respect to municipal finances or police services.
Amicus curiae New Jersey Appleseed addresses only the issue
of divestment of legislative power. It argues that the
Appellate Division correctly determined that the trial court
erred with respect to the question of an unlawful restraint on
municipal legislative authority, but that the panel’s reasoning
was incorrect. It contends that because the Committee’s
initiated petition is an ordinary enactment with only “inertial”
force against future lawmakers, and that nothing in the
ordinance makes it impossible or unusually burdensome for future
City Councils to amend or repeal it, it is a valid application
of the Faulkner Act.
As amicus curiae, the Department of Community Affairs
supports the position of Mayor Redd and Council President Moran
that the Committee’s proposed ordinance is preempted by MRERA,
SMAA, and TAL. It asserts that the ordinance expressly
prohibits the regionalization of Camden’s police services, which
is one of several “exceptional measures” mandated by the
Department. The Department notes that pursuant to a 2010
amendment to MRERA, N.J.S.A. 52:27BBB-23(a)(2), in Camden’s
“recovery” phase, ordinances and resolutions adopted by its
17
governing body remained subject to review and veto by the
Commissioner of Community Affairs.
IV.
A.
As a threshold matter, we do not concur with the assertion
of Mayor Redd and Council President Moran that this appeal
should be dismissed as moot. An issue is “moot when our
decision sought in a matter, when rendered, can have no
practical effect on the existing controversy.” Deutsche Bank
Nat’l Trust Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App.
Div. 2011) (internal quotation marks omitted); Greenfield v.
N.J. Dep’t of Corr., 382 N.J. Super. 254, 257-58 (App. Div.
2006). This is not a direct action seeking to enjoin the
dissolution of the municipal department and the creation of the
countywide police force. The question raised by the parties is
whether the Committee’s proposed initiated ordinance is valid,
and therefore must be presented to the Council pursuant to
N.J.S.A. 40:69A-184. This is a justiciable issue that can and
should be resolved by this Court. The remedy sought by Mayor
Redd and Council President Moran can still be granted or denied.
Consequently, we decline to dismiss this appeal as moot.
We review de novo the legal determinations of the trial
court and Appellate Division as to the interplay between the
Faulkner Act, MRERA, and the relevant State fiscal and police
18
force statutes. In re Petition for Referendum on Trenton
Ordinance 09-02, 201 N.J. 349, 358 (2010) (citing Manalapan
Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)). “Our task in statutory interpretation is to determine
and effectuate the Legislature’s intent.” Bosland v. Warnock
Dodge, Inc., 197 N.J. 543, 553 (2009) (citations omitted); see
also N.J.S.A. 1:1-1 (instructing that words and phrases be given
their generally accepted meaning “unless inconsistent with the
manifest intent of the legislature or unless another or
different meaning is expressly indicated”).
Governed by these principles, we consider the Legislature’s
intent when it conferred on the voters the initiative power set
forth in N.J.S.A. 40:69A-184. That provision was the product of
a 1982 legislative reform intended to “make[] uniform the
initiative and referendum procedures of municipalities operating
under the ‘Walsh Act[,]’ [N.J.S.A. 40:70-1 to 78-27,] and the
‘Faulkner Act.’”3 S. Cnty. & Mun. Gov’t Comm. Statement to S.
763 (Mar. 1, 1982). The 1982 amendments followed a finding that
“[t]he initiative and referendum provisions of the ‘Walsh Act,’
which date from 1911, are rather vague, often confusing, and use
archaic terms. Those of the ‘Faulkner Act,’ written in 1950,
3 The Walsh Act was “the first New Jersey municipal charter law
to give voters the power of initiative and referendum.” Tumpson
v. Farina, 218 N.J. 450, 465 (2014) (citation omitted).
19
while more complete and modern, lack certain of the stronger
provisions of the ‘Walsh Act.’” Ibid.
As amended, the Faulkner Act’s initiative provision confers
on the voters the right to propose an ordinance, if the petition
includes a sufficient number of signatures. See N.J.S.A.
40:69A-184.
The voters of any municipality may propose any
ordinance and may adopt or reject the same at
the polls, such power being known as the
initiative. Any initiated ordinance may be
submitted to the municipal council by a
petition 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.
An initiated ordinance may be submitted to the
municipal council by a number of the legal
voters of the municipality equal in number to
at least 10% but less than 15% of the total
votes cast in the municipality at the last
election at which members of the General
Assembly were elected, subject to the
restrictions set forth in [N.J.S.A. 40:69A-
192].
[Ibid.]4
4 The corresponding referendum provision gives the voters “the
power to approve or reject at the polls any ordinance submitted
by the council to the voters or any ordinance passed by the
council,” if a referendum petition meeting the statute’s
requirements has been submitted. N.J.S.A. 40:69A-185; see
Tumpson, supra, 218 N.J. at 468-72 (discussing requirements of
Faulkner Act referendum provision); In re Referendum Petition to
Repeal Ordinance 04-75, 192 N.J. 446, 459-62, 464-67 (2007)
(same).
20
“The ‘salutary purposes’ of both initiative and referendum
include ‘arousing public interest’ and ‘placing in the hands of
the voters . . . direct means of controlling proposed or already
enacted municipal legislation and also of accomplishing the
enactment of legislation which has neither been proposed nor
adopted.’” City of Ocean City v. Somerville, 403 N.J. Super.
345, 352 (App. Div. 2008) (quoting Maese v. Snowden, 148 N.J.
Super. 7, 11 (App. Div. 1977), superseded on other grounds by
statute as stated in Redd, supra, 433 N.J. Super. at 190-92).
The Faulkner Act’s initiative and referendum procedures
“comprise two useful instruments of plebiscite power.” Twp. of
Sparta v. Spillane, 125 N.J. Super. 519, 523 (App. Div. 1973),
certif. denied, 64 N.J. 493 (1974).
The Legislature’s clear expression of intent to grant to
voters in Faulkner Act municipalities broad powers of initiative
provides the setting for our review of the Committee’s challenge
to the Camden police reorganization.
B.
We concur with the Appellate Division that, as applied in
this case, the Committee’s Faulkner Act initiative petition does
not constitute an unlawful restraint on the Council’s future
exercise of its legislative power. See Redd, supra, 433 N.J.
Super. at 188-94.
21
As the trial court and Appellate Division recognized, in
the absence of specific authorization from the Legislature, a
governing body cannot “‘divest its successors of legislative
power.’” Redd, supra, 433 N.J. Super. at 188-89 (quoting Ocean
City, supra, 403 N.J. Super. at 359); Maese, supra, 148 N.J.
Super. at 13 (citing 4 McQuillin on Municipal Corporations §
13.03(b) (3d ed. rev. 1968)). There is an exception to that
general principle, however, when the Legislature specifically
authorizes present legislative bodies to restrict the
legislative powers of their successors. Ocean City, supra, 403
N.J. Super. at 359; Maese, supra, 148 N.J. Super. at 13. In the
Faulkner Act, the Legislature has clearly expressed an intent to
effect a limited divestment of one aspect of the governing
body’s legislative power -- its authority to repeal an ordinance
passed by initiative in accordance with N.J.S.A. 40:69A-184. As
part of its 1982 amendments, the Legislature determined that,
for a period of three years, an ordinance passed by either
initiative or referendum may be amended or repealed only by
voter action. S. Cnty. & Mun. Gov’t Comm. Statement to S. 763,
supra. The section provides:
If a majority of the qualified electors voting
on the proposed ordinance shall vote in favor
thereof, such ordinance shall thereupon become
a valid and binding ordinance of the
municipality and be published as in the case
of other ordinances. No such ordinance shall
be amended or repealed within 3 years
22
immediately following the date of its adoption
by the voters, except by a vote of the people.
The council may, within 3 years immediately
following the date of adoption of the
ordinance, submit a proposition for the repeal
or amendment of that ordinance to the voters
at any succeeding general election or regular
municipal election. If the proposition
submitted shall receive a majority of the
votes cast at that election, the ordinance
shall be repealed or amended accordingly. If
the provisions of two or more measures approved
or adopted at the same election conflict then
the measure receiving the greatest affirmative
vote shall control.
[N.J.S.A. 40:69A-196(a); see also L. 2009, c.
339 (amending N.J.S.A. 40:69A-196 to add
paragraph (b), but leaving paragraph (a)
intact).]
As this Court has observed in applying the referendum
provision of the Faulkner Act, “[i]t is the function of the
Legislature, not the courts, to determine how much direct
democracy through referendum should be conferred on the voters
of a municipality.” Ordinance 04-75, supra, 192 N.J. at 467.
The same principle governs the initiative in this case. The
Legislature has authorized the divestment, for a prescribed
period, of one aspect of a succeeding governing body’s
authority, when an ordinance is enacted by initiative in
accordance with N.J.S.A. 40:69A-184.5
5Following the expiration of that period, the governing body may
amend or repeal the initiated ordinance, as it may amend or
repeal any other ordinance, pursuant to the authority granted to
it under N.J.S.A. 40:48-1.
23
By virtue of this short-term constraint created by the
Legislature, which would temporarily limit the authority of
Camden’s current and successor legislatures in the event that
the Committee’s initiated ordinance were adopted, the ordinance
would not constitute an improper restraint on future legislative
authority. We affirm the Appellate Division’s determination
regarding this issue.
C.
“[A] court may declare an ordinance invalid if it . . . is
preempted by superior legal authority.” Rumson Estates, Inc. v.
Mayor of Fair Haven, 177 N.J. 338, 351 (2003) (citing United
Bldg. & Constr. Trades Council v. Mayor of Camden, 88 N.J. 317,
343 (1982)). “Preemption is a judicially created principle
based on the proposition that a municipality, which is an agent
of the State, cannot act contrary to the State.” Overlook,
supra, 71 N.J. at 461 (citing Summer v. Twp. of Teaneck, 53 N.J.
548, 554 (1969)). In a preemption analysis, the initial
question is “whether the field or subject matter in which the
ordinance operates, including its effects, is the same as that
in which the State has acted.” Ibid. If the “field or subject
matter” of the municipal ordinance and state law are not the
same, there is no preemption; if they are the same, then the
question of preemption is further explored. Ibid. “The
ultimate question is whether, upon a survey of all the interests
24
involved in the subject, it can be said with confidence that the
Legislature intended to immobilize the municipalities from
dealing with local aspects otherwise within their power to act.”
Summer, supra, 53 N.J. at 555. “It is not enough that the
Legislature has legislated upon the subject . . . .” Id. at 554
(citation omitted).
In Overlook, supra, this Court set forth the following
five-factor test for determining whether a state law preempts a
municipal ordinance:
1. Does the ordinance conflict with state law,
either because of conflicting policies or
operational effect (that is, does the
ordinance forbid what the Legislature has
permitted or does the ordinance permit what
the Legislature has forbidden)?
2. Was the state law intended, expressly or
impliedly, to be exclusive in the field?
3. Does the subject matter reflect a need for
uniformity? . . .
4. Is the state scheme so pervasive or
comprehensive that it precludes coexistence of
municipal regulation?
5. Does the ordinance stand “as an obstacle to
the accomplishment and execution of the full
purposes and objectives” of the Legislature?
[71 N.J. at 461-62 (citations omitted).]
The Overlook factors have served as the governing standard
in several settings in which courts determined whether state law
preempts a local ordinance. See, e.g., Mack Paramus Co. v.
25
Mayor of Paramus, 103 N.J. 564, 566, 573-74 (1986) (citing
Overlook factors to assess whether local Sunday blue law
ordinances were preempted by State Sunday blue law); Lake Valley
Assocs. v. Twp. of Pemberton, 411 N.J. Super. 501, 505-06 (App.
Div.) (noting that, “[o]rdinarily, to determine whether an
ordinance or part thereof is preempted by statute, the court
should consider the [five] factors set forth in Overlook,” but
such inquiry was not needed when statute explicitly provided
that it was not intended to preempt local ordinances), certif.
denied, 202 N.J. 43 (2010); Crow-N.J. 32 Ltd. v. Twp. of
Clinton, 718 F. Supp. 378, 385-86 (D.N.J. 1989) (citing Overlook
“guidelines for deciding whether a state statute preempts a
local ordinance”).
The preemption standard of Overlook is consistent with the
principles stated in two recent opinions in which this Court
rejected challenges to referendum petitions submitted pursuant
to the Faulkner Act, Trenton Ordinance 09-02, supra, 201 N.J. at
359-64, and Ordinance 04-75, supra, 192 N.J. at 464-69.
Although it does not appear that the municipality challenging
the referendum in either case couched its contention as a
preemption argument, the issues raised in both appeals are
closely related to the preemption argument asserted by Mayor
Redd and Council President Moran in this case, and thus, the
Court’s analysis in both instances is instructive.
26
In Ordinance 04-75, supra, the Court rejected the reasoning
of a line of cases that exempted “administrative” ordinances
from the reach of the Faulkner Act. 192 N.J. at 467-70. The
Court cited the expansive language of the Faulkner Act
referendum provision, which gives the voters “the power to
approve or reject at the polls . . . any ordinance passed by the
council” and challenged by referendum. Id. at 460 (quoting
N.J.S.A. 40:69A-185). It also identified a panoply of statutes
in which the Legislature demonstrated that it “knew precisely
how to exclude particular ordinances from the purview of the
referendum statute when it wished to do so.” Id. at 466-67.
The Court then observed:
That sampling clearly establishes that the
Legislature has determined, on multiple
occasions, those municipal matters that should
not be called before the voters in a
referendum. Because the Legislature has made
exceptions to N.J.S.A. 40:69A-185 with such
precision in a multitude of statutes, we
cannot find that it intended an amorphous
legislative/administrative distinction that
cannot be gleaned from the statute’s text,
legislative history, or place in the larger
statutory scheme.
[Id. at 467.]
Following the analysis of Ordinance 04-75, the Court held
in Trenton Ordinance 09-02, supra, that the Municipal Utilities
Law, N.J.S.A. 40:62-1 to -151, which provided for Board of
Public Utilities review of the sale of Trenton’s water works
27
system, was not intended to deprive the public of its referendum
power under the Faulkner Act. 201 N.J. at 353, 359-68. The
Court reiterated the holding of Ordinance 04-75 that
where the legislative intent is not clear
“from the statute’s text, legislative history,
or place in the larger statutory scheme[,]” an
intention to immunize an ordinance from a
Faulkner Act challenge will not be found. Put
another way, in the absence of an unequivocal
legislative expression to the contrary,
citizens in a Faulkner Act municipality are
empowered to protest any ordinance under the
Act. The burden is on the party seeking to
defeat the Faulkner Act to clearly establish
the existence of a contrary legislative
intent.
[Id. at 362 (quoting Ordinance 04-75, supra,
192 N.J. at 467).]
Thus, the Overlook standard that generally governs
questions of state preemption of municipal ordinances, and the
Court’s two recent decisions applying the referendum provision
of the Faulkner Act, direct that we discern whether the
Legislature intended to deny voters the power of initiative in
the setting of this case. The broad statutory language, on
which the Court’s holdings in Ordinance 04-75 and Trenton
Ordinance 09-02 rest, finds an exact counterpart in the
initiative provision of the Faulkner Act. The Act permits the
voters of any municipality to “propose any ordinance and . . .
adopt or reject the same at the polls.” N.J.S.A. 40:69A-184;
see Ocean City, supra, 403 N.J. Super at 357 (noting that
28
Faulkner Act’s initiative provision “by its very terms admits of
no qualification”). Accordingly, we review MRERA and the fiscal
statutes on which Mayor Redd and Council President Moran rely,
as well as the Police Force Statute invoked by Council President
Moran, to determine whether the Legislature intended to deny a
properly framed Faulkner Act ordinance to preclude the police
reorganization undertaken by Camden in 2013.
The Memorandum of Understanding, which prompted the
regionalization of the Camden police force, followed years of
State oversight of Camden’s finances, and is rooted in the LBL,
SMAA, TAL, and, most directly and specifically, MRERA. The LBL
generally charges the Department’s Division of Local Government
Services with significant oversight of municipal budgets, which
must be certified by the Director of the Division. N.J.S.A.
40A:4-76 to -79.6 The LBL requires local municipalities to enact
a balanced budget in every fiscal year. See Ocean City, supra,
403 N.J. Super. at 363-64 (explaining municipal budget process);
6LBL provides that “[t]he governing body of each local unit
shall adopt a budget for each fiscal year.” N.J.S.A. 40A:4-3.
The Director of the Division of Local Government Services will
then “examine the budget for detail and accuracy of itemization
and for compliance as to form, arrangement and content with the
provisions of [Chapter 4] and the regulations of the local
government board.” N.J.S.A. 40A:4-76. “Immediately after the
making of his examination of the budget, the director shall
certify the results of his determination to the governing body.
A governing body shall not finally adopt a budget until a
certification of approval by the director has been received.”
N.J.S.A. 40A:4-79.
29
accord Cnty. of Morris v. Skokowski, 86 N.J. 419, 422-23 (1981).
The statute imposes on Camden and other municipalities detailed
requirements with respect to the process of enacting a municipal
budget, but contains no evidence that the Legislature intended
to preempt the Faulkner Act initiative at issue in this case.7
For municipalities such as Camden that were eligible for
municipal aid, SMAA prescribes a procedure by which the Director
of the Division of Local Government Services determines that the
“municipality is experiencing fiscal distress and may require
assistance under [N.J.S.A. 52:27D-118.24 to 118.31],” and reports
that finding to the Local Finance Board. N.J.S.A. 52:27D-118.28.
After reviewing the municipality’s finances and meeting with the
governing body and other “interested parties,” the director is
required to “notify the board of the findings of the review and .
. . recommend to the board actions necessary to be taken by the
municipality, which may include the provision of short-term
financial aid.” Ibid. The Legislature clearly stated in SMAA
that the implementation of reforms necessary to the
7 As this Court noted in Ordinance 04-75, supra, the Faulkner
Act’s referendum provision “contains at least a partial, if not
total, exception to the referendum rule for municipal budgets,”
because in N.J.S.A. 40:69A-185, the Legislature exempted local
budget ordinances from the otherwise applicable twenty-day
waiting period before they become effective. 192 N.J. at 465-
66. The Court read this provision to “signify[] that, unlike
other ordinances, a budget ordinance cannot be suspended” under
the Faulkner Act. Id. at 465.
30
municipality’s financial recovery was a condition of receiving
State aid under N.J.S.A. 52:27D-118.24 to -118.31:
As a condition of receiving assistance under
the provisions of [N.J.S.A. 52:27D-118.24 to
-118.31], an eligible municipality shall
implement any government, administrative and
operational efficiency, and oversight
measures necessary for the fiscal recovery of
the municipality as recommended by the
director and approved by the board, and be
subject to management and fiscal audit by the
director.
. . . .
b. The director may withhold from an eligible
municipality any State aid payments that are
disbursed by the Division of Local Government
Services if the director finds the
municipality has failed to implement fiscal
recovery measures approved by the board. Upon
withholding an aid payment, the director shall
report to the board the circumstances
surrounding the reasons for withholding aid.
The board shall then hold a hearing to give
the eligible municipality an opportunity to
explain why such aid payments should not
continue to be withheld, and what action the
eligible municipality plans to take to
implement the fiscal recovery measures. Upon
completion of the hearing, the board shall
determine if State aid payments should
continue to be made to the municipality,
establish a schedule for such payments when
appropriate, and determine what other actions
should be taken.
[N.J.S.A. 52:27D-118.29.]
In 2011, TAL replaced the SMAA scheme and two other
existing municipal aid programs. See S. Budget & Appropriations
Comm. Statement to S. 3118 (Dec. 8, 2011). The Senate Budget
31
and Appropriations Committee declared that “[a]pplying for aid
under this program is a declaration that the municipality is not
capable of managing its finances without special State
assistance and intervention.” Ibid. Under TAL, the Director of
the Division of Local Government Services exercises broad
oversight of the municipality’s operations, focusing on, but not
limited to, its fiscal management. See N.J.S.A. 52:27D-
118.42a(a).
The Director of the Division of Local
Government Services in the Department of
Community Affairs shall determine conditions,
requirements, orders, and oversight for the
receipt of any amount of grants, loans, or any
combination thereof, provided to any
municipality through the [TAL] program or any
successor discretionary aid programs for
municipalities in fiscal distress.
Conditions, requirements, or orders deemed
necessary by the director may include, but not
be limited to, the implementation of
government, administrative, and operational
efficiency and oversight measures necessary
for the fiscal recovery of the municipality,
including but not limited to requiring
approval by the director of personnel actions,
professional services and related contracts,
payment in lieu of tax agreements, acceptance
of grants from State, federal or other
organizations, and the creation of new or
expanded public services.
[Ibid.]
SMAA and TAL plainly reveal the Legislature’s determination
that municipal aid for Camden and other qualified municipalities
is premised on the municipalities’ compliance with a broad
32
spectrum of conditions and requirements imposed by the State.
See N.J.S.A. 52:27D-118.24 to 118.31; N.J.S.A. 52:27D-118.42a.
Under SMAA and TAL, a municipality’s failure to comply with the
State directives authorized by the Legislature may have dire
fiscal consequences. See N.J.S.A. 52:27D-118.29(b).
Nonetheless, neither statute bars a municipality from enacting
ordinances by initiative or referendum under the Faulkner Act
that contravene a condition imposed by the State. Although such
an ordinance might imperil state funding under SMAA or TAL, it
is not preempted by either statute.
In enacting MRERA in 2002, the Legislature clearly viewed
the statute as an extraordinary response to a crisis of both
fiscal management and public safety.8 Citing “a continuing state
8 Camden meets the definition of a “qualifying municipality”
under MRERA. Camden City Bd. of Educ. v. McGreevey, 369 N.J.
Super. 592, 607 (App. Div. 2004). MRERA defines a qualified
municipality as one
(1) that has been subject to the supervision
of a financial review board pursuant to the
“Special Municipal Aid Act,” L. 1987, c. 75
[N.J.S.A. 52:27D-118.24 to -118.31] for at
least one year; (2) that has been subject to
the supervision of the Local Finance Board
pursuant to the “Local Government Supervision
Act (1947),” L. 1947, c. 151 [N.J.S.A.
52:27BB-1 to -23] for at least one year; and
(3) which, according to its most recently
adopted municipal budget, is dependent upon
State aid and other State revenues for not
less than 55 percent of its total budget.
[N.J.S.A. 52:27BBB-3.]
33
of fiscal distress which endures despite the imposition of a
series of measures authorized pursuant to law,” and “a lack of
internal audit controls, accountability and oversight,” the
Legislature acknowledged the failure of prior efforts to
encourage economic growth. N.J.S.A. 52:27BBB-2 (a), (g).
In addition to several provisions regarding the fiscal
management of a qualified municipality, the Legislature
specifically addressed the need for a police force sufficient to
protect public safety:
Given the high crime rates in these
municipalities, if economic recovery is to be
successful, it is vital that municipal
residents feel that their basic safety is
assured; accordingly, the State will continue
to commit to assist such municipalities in
maintaining not less than that number of
police officers employed by the municipality
at the time of the determination by the
commissioner that the municipality fulfills
the definition of a qualified municipality and
in creating working relationships between
State agencies, local law enforcement and the
community to identify and develop strategies
to improve the quality of life and the
security of residents in qualified
municipalities.
[N.J.S.A. 52:27BBB-2(l).]
In MRERA, the Legislature mandated that State and municipal
officials focus on the efficacy and cost of police services.
See, e.g., N.J.S.A. 52:27BBB-2(b) (providing that municipalities
qualified under MRERA “have a history of high crime rates . . .
that has necessitated the maintenance of large police and fire
34
departments, at enormous taxpayer cost in municipalities without
a sound tax base”); N.J.S.A. 52:27BBB-12(d) (mandating study to
“analyze the current state of [public safety] services . . . and
make recommendations for current and future staffing levels in
order to realize appropriate levels of service”). Thus, the
Legislature disclosed a clear intent that the State and the
local governing body, such as Camden, would scrutinize, and, as
necessary, reform the delivery of police services to its
residents.
In MRERA, however, the Legislature reaffirmed that a
municipality’s status as a qualified municipality would leave in
place the form of government chosen prior to its entry into the
rehabilitation and economic recovery phases prescribed by the
statute. The statute provides that “[n]otwithstanding that a
municipality has been placed under rehabilitation and economic
recovery under [N.J.S.A. 52:27BBB-1 to -79], the municipality
shall remain a body corporate and politic in the same manner as
existed prior to rehabilitation and economic recovery.”
N.J.S.A. 52:27BBB-34(a). Moreover, MRERA directs that a
qualified municipality retain its chosen form of government:
Unless otherwise provided pursuant to
[N.J.S.A. 52:27BBB-1 to -79], the governing
body shall retain all functions, powers and
duties prescribed to it pursuant to the
charter and administrative code of the
municipality, . . . [including] any specific
form of government law according to which the
35
municipality is governed, and such other
sections or other laws which govern municipal
operation or administration.
[N.J.S.A. 52:27BBB-25.]
As those provisions reflect, the Legislature intended that
ordinances be enacted in a qualified municipality in accordance
with the procedures mandated for the form of government chosen
by the municipality. In the case of Camden, a Faulkner Act
municipality, three processes are prescribed by the Faulkner Act
for the enactment of an ordinance: council vote, N.J.S.A.
40:69A-180 to -181; initiative, N.J.S.A. 40:69A-184; and
referendum, N.J.S.A. 40:69A-185. An ordinance, however enacted,
that undermines an agreement reached by Camden pursuant to MRERA
may prompt the State to withhold municipal aid under the
statute, but there is nothing in MRERA that expresses a
legislative intent to preempt the Faulkner Act process.
Instead, MRERA reaffirms Camden’s status as a Faulkner Act
municipality, and by inference, the initiative and referendum
procedure at the Faulkner Act’s core.
The Legislature has extensively addressed the field of
municipal finance in Camden, particularly in SMAA, TAL and
MRERA, but it has not done so to the exclusion of a municipal
role, as the actions taken by Camden illustrate. See generally
N.J.S.A. 52:27D-118.24 to -118.31, 52:27D-118.42a, 52:27BBB-1 to
-79. Although the Legislature clearly intended that a decision
36
by Camden not to reform its police services would have serious
ramifications for the City, it left open the possibility that
Camden would reject the State-imposed conditions, and with that,
its State aid. See N.J.S.A. 52:27D-118.29(b), 52:27D-118.42a.
It did not purport to bar Camden from enacting ordinances --
including ordinances with negative fiscal consequences to the
municipality -- by initiative or referendum.
Thus, in accordance with the standard set forth in
Overlook, and in accord with this Court’s decisions in Ordinance
04-75 and Trenton Ordinance 09-02, the Legislature’s intent is
clear -- to preserve the Faulkner Act procedures notwithstanding
Camden’s status as a qualified municipality under N.J.S.A.
52:27BBB-3. MRERA does not preempt the power of initiative
conferred by the Legislature in the Faulkner Act.
Similarly, we discern no legislative intent in the Police
Force Statute to preempt the police regionalization ordinance.
That statute authorizes “[t]he governing body of any
municipality [to] create and establish, as an executive and
enforcement function of municipal government, a police force.”
N.J.S.A. 40A:14-118.
Nothing in the Police Force Statute precludes the voter
initiative and referendum procedures set forth in the Faulkner
Act. See Ordinance 04-75, supra, 192 N.J. at 451-55, 470
(affirming validity of Faulkner Act referendum challenging
37
ordinance regarding composition of police force created pursuant
to N.J.S.A. 40A:14-118). Indeed, like MRERA, the Police Force
Statute reaffirms the form of government adopted by the
municipality:
Any such ordinance shall, in a manner
consistent with the form of government adopted
by the municipality and with general law,
provide for a line of authority relating to
the police function and for the adoption and
promulgation by the appropriate authority of
rules and regulations for the government of
the force and for the discipline of its
members.
[N.J.S.A. 40A:14-118.]
The Legislature thus expressly acknowledged in the Police
Force Statute that a police ordinance would be enacted
consistent with the form of government chosen by the
municipality -- in Camden’s case, the Faulkner Act Mayor-Council
form of government prescribed by N.J.S.A. 40:69A-32. The Police
Force Statute does not preempt the Faulkner Act’s mechanisms and
invalidate the Committee’s proposed ordinance.
Accordingly, we hold that the Faulkner Act initiated,
proposed ordinance at issue here is not invalid by virtue of
preemption by either MRERA, SMAA, TAL, LBL, or the Police Force
Statute. We reverse that portion of the Appellate Division’s
judgment that remanded the matter to the trial court for the
development of a record on the issue of preemption.
D.
38
Although MRERA does not preempt the Faulkner Act as applied
here, it clearly expresses the Legislature’s intent that during
the “economic recovery term” as defined in N.J.S.A. 52:27BBB-3
and -6, any duly authorized ordinance -- whether passed by vote
of the council or presented to the voters by initiative –- is
subject to the authority granted to the Commissioner of
Community Affairs. MRERA provides:
During the economic recovery term, in addition
to the normal procedures for adopting
resolutions and ordinances set forth in the
form of government of the qualified
municipality, within three business days
following each meeting of the governing body,
a copy of each ordinance and resolution which
has been adopted by the governing body shall
be forwarded to the Commissioner of Community
Affairs, who shall have 10 days from the
receipt thereof to veto the ordinance or
resolution, as the case may be. Any veto
action by the commissioner shall be submitted
to the governing body within 10 days of the
veto. Within five business days thereafter,
the governing body may override the veto by a
two-thirds vote of the fully authorized
membership thereof . . . .
[N.J.S.A. 52:27BBB-23(a)(20) (emphasis
added).]
Accordingly, any ordinance submitted to the Council by
initiative petition is subject to the Commissioner’s veto
authority as set forth in N.J.S.A. 52:27BBB-23(a)(2). Moreover,
the Legislature has clearly stated in SMAA that municipalities
that disregard requirements imposed by the Department and
39
Memoranda of Understanding risk the loss of essential state aid.
See N.J.S.A. 52:27D-118.29(b).
When we review separate legislative enactments, we have
“‘an affirmative duty to reconcile them, so as to give effect to
both expressions of the lawmakers’ will.’” Trenton Ordinance
09-02, supra, 201 N.J. at 359 (quoting St. Peter’s Univ. Hosp.
v. Lacy, 185 N.J. 1, 14 (2005)). In accordance with that
principle, we reconcile the Faulkner Act procedures with the
veto provision of N.J.S.A. 52:27BBB-23(a)(2) and the conditions
imposed by the fiscal statutes, as follows.
If an ordinance such as that proposed by the Committee were
to be submitted to the Council and the Council did not pass it,
thus invoking the procedure in N.J.S.A. 40:69A-191 for
submission of the ordinance to the voters, the Commissioner must
be afforded the opportunity to veto the proposed initiative
ordinance within the ten-day time frame set forth in N.J.S.A.
52:27BBB-23(a)(2). Although MRERA is silent as to whether the
Commissioner must accompany any veto of the initiated ordinance
with a message explaining his or her action, in the setting
here, such a message is essential to inform voters about the
import of the ordinance.9 If the Commissioner’s analysis
9 Although the Faulkner Act does not mandate that a petition
initiative be accompanied by an interpretive statement, the
drafters have indicated that such a statement is
permissible. See N.J.S.A. 40:69A-15; Polillo v. Deane, 74 N.J.
40
indicates that an ordinance regarding the countywide police
force will result in a substantial reduction of police officers
and loss of significant state aid to Camden, then the voters
should be informed of that fact. If the voters adopt the
initiated petition after being informed of the Commissioner’s
objections, their decision to enact the ordinance functions as
the equivalent of the governing body’s override, as envisioned
by the Legislature in MRERA. N.J.S.A. 52:27BBB-23(a)(2).10
By virtue of the distinctions between the process followed
by a governing body in passing ordinances and the initiative
procedure of N.J.S.A. 40:69A-184, it is impractical to precisely
replicate MRERA’s intended process for the Commissioner’s veto
pursuant to N.J.S.A. 52:27BBB-23(a)(2) in a Faulkner Act
setting. It is, for example, impossible to impose MRERA’s
562, 573 n.6 (1977). An interpretive statement is designed to
aid voters in understanding the matter to be voted upon. Bd. of
Chosen Freeholders of Morris v. State, 159 N.J. 565, 582 (1999);
Gormley v. Lan, 88 N.J. 26, 37 (1981). An interpretive
statement under the Faulkner Act should conform to N.J.S.A.
19:3-6, which authorizes “a brief statement interpreting the
[question before the voters] and setting forth the true purpose
of the matter being voted upon in addition to the statement of
the public question required by the statute itself.” Cf. City
of N. Wildwood v. N. Wildwood Taxpayers’ Ass’n, 338 N.J. Super.
155, 163, 165 (Law Div. 2000) (stating that election law statute
and Faulkner Act provisions are read in pari materia and
invalidating misleading and prejudicial interpretative
statement).
10 A similar process would occur if the Council approved an
initiated ordinance, the Commissioner vetoed that ordinance
pursuant to N.J.S.A. 52:27BBB-23(a)(2), and the Council did not
override the veto.
41
strict deadlines for the veto process when, under the Faulkner
Act, voter review of the initiated ordinance must await a
general, regular municipal or special election. See N.J.S.A.
52:27BBB-23(a)(2); N.J.S.A. 40:69A-192. Further, although
N.J.S.A. 52:27BBB-23(a)(2) envisions that the Commissioner’s
opportunity to veto will follow the governing body’s adoption of
an ordinance, that process cannot be duplicated when an
ordinance has been proposed by initiative, rejected by the
governing body, and submitted by the municipal clerk to the
voters under N.J.S.A. 40:69A-191. The Commissioner’s veto is
necessarily exercised with respect to an ordinance that has not
been adopted by the voters. The process that we set forth
reconciles the objectives and provisions of the statutes as
closely as possible.
Accordingly, in light of Camden’s status as a municipality
in the recovery phase of the MRERA process, the Faulkner Act
procedure for the enactment of an initiated ordinance for the
reorganization of the police force must incorporate the
Commissioner’s veto authority as set forth in N.J.S.A. 52:27BBB-
23(a)(2). If an initiated ordinance is submitted to the voters
of Camden following the Commissioner’s veto, the voters should
be informed in an interpretive statement about the
Commissioner’s veto and the reasons therefore, including, if
42
applicable, the law enforcement and fiscal consequences that
would follow the adoption of the ordinance.
E.
Although a Faulkner Act initiated petition challenging the
Camden police reorganization is not invalid as a divestment of
legislative power or by virtue of preemption, the ordinance at
issue in this case may not be submitted to the voters of Camden.
By virtue of the disbanding of Camden’s municipal police force,
the creation of the County Police Department and two years of
police services provided to the citizens of Camden by the County
Department’s Metro Division, the ordinance in this appeal is out
of date, inaccurate, and misleading.
The ordinance at issue stands in stark contrast to the
current circumstances. Its first paragraph mandates the
creation and maintenance “in continued existence” of the Camden
Police Department, which has been replaced by the Metro
Division. The second paragraph directs Camden not to disband
its police department “pursuant to the creation of any county
wide police department,” an action that occurred two years ago.
That paragraph would also enjoin Camden from participating and
joining “in the creation of” a county police department, or in
the “regionalization of police services sought to be created” by
the establishment of a countywide force, which has already taken
place. For more than two years, the Camden Metro Division of
43
the County Police Department has provided police services to the
citizens of Camden. The ordinance, in short, no longer reflects
reality.
The submission to the voters of this ordinance, as drafted,
would undermine the objectives of the Faulkner Act. The voters
who signed the Committee’s petition did so at a time when the
police reorganization was in the planning stage.11 Nothing in
the record suggests that those voters would support a challenge
to the police reorganization two years after the fact.
Moreover, the Legislature has determined that “[a]ny public
question voted upon at an election shall be presented in simple
language that can be easily understood by the voter.” N.J.S.A.
19:3-6. In contrast to the ordinance provision upheld in Stop
the Pay Hikes Committee v. Town Council of Irvington, 166 N.J.
Super. 197, 207, 210 (Law Div.), aff’d o.b., 170 N.J. Super. 393
(App. Div. 1979), which adequately explained to voters the
nature of the Faulkner Act challenge at issue, the ordinance
11This case is distinct from Brundage v. New Jersey Zinc Co., 48
N.J. 450, 463 (1967), in which the defendant corporation
“consummat[ed the disputed] merger” with “unseemly haste” two
days after the entry of judgment and the filing of the appeal.
Here, the implementation of the County Police Department in the
City took place almost twelve months after the trial court’s
entry of judgment, on a long-established schedule set by Camden,
the County, and the State. There is no indication in the record
that the reorganization was expedited in order to defeat the
Committee’s appellate rights.
44
before the Court would be impossibly confusing and misleading if
placed on the ballot.
Notwithstanding the Committee’s contention, the ordinance
before this Court may not be rewritten at this late stage. The
Faulkner Act clearly envisions that an initiated ordinance
appear on the ballot in precisely the same form in which it was
proposed, supported by the required signatures and certified by
the municipal clerk. See N.J.S.A. 40:69A-191 (stating that if
municipal council “shall fail to pass an ordinance requested by
an initiative petition in substantially the form requested . . .
the municipal clerk shall submit the ordinance to the voters
unless” the Committee of Petitioners withdraws it (emphasis
added)); N.J.S.A. 40:69A-184; see also In re An Initiative
Petition for the Adoption of an Ordinance to Amend the Jackson
Twp. Admin. Code, 437 N.J. Super. 203, 216 (App. Div. 2014)
(holding that initiative petitions must “reach the voters in
substantially the same form as presented to the petitioners”),
certif. denied, 221 N.J. 218 (2015). The voters who signed the
Committee’s petition in 2012 committed their support to the
ordinance precisely as it was drafted -- nothing more. See
Ordinance to Amend the Jackson Twp. Admin. Code, supra, 437 N.J.
Super. at 216-17. Nor can the ordinance be salvaged by an
interpretative statement, which is intended to explain the
question to voters, not to revise it after the fact. See
45
N.J.S.A. 19:3-6; see also Ordinance to Amend the Jackson Twp.
Admin. Code, supra, 437 N.J. Super. at 213, 216-17 (holding that
court may not sever clause from initial ordinance and submit
remainder of ordinance to voters).
We note that the Committee of Petitioners properly filed a
motion to accelerate the appeal, which was denied by the
Appellate Division, and the appeal was heard by the Appellate
Division in the ordinary course. When a party to a Faulkner Act
challenge moves to accelerate an appeal from a decision
validating or invalidating an ordinance, an appellate court
should ordinarily grant the motion and consider the merits of
the appeal on an expedited basis. See R. 2:9-2 (permitting
court to accelerate proceedings when a prompt final disposition
is required); DeSimone v. Greater Englewood Hous. Corp., 56 N.J.
428, 434 (1970) (stating that accelerated applications should be
granted in cases “of great public importance [that] urgently
require[] prompt final adjudication”); see also State in
Interest of S.T., 233 N.J. Super. 598, 606-07 (App. Div. 1989).
Prompt appellate review of a trial court’s judgment is important
in cases such as this, so that the validity of a proposed
ordinance can be determined when the ordinance is still timely,
and the initiative and referendum rights recognized by the
Legislature in the Faulkner Act may be protected.
46
In this case, the Committee’s challenge to the police
reorganization must start anew with an ordinance that reflects
the facts as they now stand.12
V.
The judgment of the Appellate Division is affirmed in part
and reversed in part. The matter is remanded to the trial court
for the entry of judgment directing the Camden Municipal Clerk
not to certify the Committee’s ordinance pursuant to N.J.S.A.
40:69A-187.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON;
and JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s
opinion. JUSTICE FERNANDEZ-VINA did not participate.
12In light of our ruling, we do not reach the argument, asserted
by Mayor Redd, that the ordinance should have been proposed by
referendum under N.J.S.A. 40:69A-185, rather than by initiative
under N.J.S.A. 40:69A-184.
47
SUPREME COURT OF NEW JERSEY
NO. A-71/72/73 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
HONORABLE DANA L. REDD, Camden City Mayor, and
HONORABLE FRANCISCO MORAN, Camden City Council President,
Plaintiffs-Appellants
and Cross-Respondents,
v.
VANCE BOWMAN, LARRY GILLIAMS, EULISIS DELGADO,
MARY I. CORTES, and ROBERT DAVIS, Individually and
collectively as the Committee of Petitioners,
Defendants-Respondents
and Cross-Appellants,
and
LUIS PASTORIZA, Clerk of the City of Camden,
JOSEPH RIPA, Clerk of Camden County, PHYLLIS PEARL, Camden County
Superintendent of Elections, CAMDEN COUNTY BOARD OF ELECTIONS,
and CAMDEN COUNTY COUNCIL,
Defendants.
DECIDED August 11, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRM IN
PART/
CHECKLIST REVERSE IN
PART/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA -------------------- --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6