Supreme Court of New Jersey

Top row, L to R: Justice Roberto A. Rivera-Soto; Justice Barry T. Albin; Justice John E. Wallace, Jr.; Justice Helen E. Hoens; Front row, L to R: Justice Virginia Long; Chief Justice Stuart Rabner; Justice Jaynee LaVecchia.

Court finds ordinance open to referendum
City was challenged on ending deputy chiefs

Thursday, September 27, 2007 Trenton Times

TRENTON -- The New Jersey Supreme Court ruled yesterday that the city's 2004 ordinance that reorganized the police department and scuttled three deputy chief positions is subject to a voter referendum.

But the impact of the unanimous ruling is dubious, since the three deputy chiefs who held the positions in 2004 retired rather than take a pay cut and demotion, and the city last year passed another ordinance laying out the department's command structure.

Nevertheless, the decision was cheered by the police officers and residents who filed the original petition in late 2004 to overturn the ordinance.

"You can fight city hall after all," said lawyer George T. Dougherty, who represented the group. "It's a nice breath of fresh air for civic-minded people who'd like to have their say in government."

A referendum was briefly scheduled in early 2005 but the vote never happened as the issue moved into the courts.

The high court's ruling will be felt around the state because it is likely to give voters more opportunities to overthrow ordinances they oppose with properly certified petitions, officials say. The ruling affects the 125 municipalities governed by the Faulkner Act, which includes all major cities such as Trenton and large urban and suburban areas like Hamilton and New Brunswick.  [ HOBOKEN is also governed by the Faulkner Act. ]

In 39 years of case law rulings, state courts have made a distinction between municipal ordinances that are administrative in nature and ones that are legislative.

Legislative ordinances that addressed more permanent issues were subject to voter referendum, but administrative ordinances that addressed more temporary or general issues were exempted from referendums.

Yesterday's high court ruling cleared that up, saying there was no distinction, and reverted to state statutes that say, "the voters shall also have the power of referendum which is 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, against which a referendum petition has been filed. ..."

New Jersey League of Municipalities Executive Director Bill Dressel said he fears cities and towns affected by the ruling could see taxes rise to cover the costs of such referendums.

"I think it could dramatically increase costs in municipal clerks' offices for the additional election costs," Dressel said.

"It makes a significant change in ordinances, especially dealing with the administrative structures (in towns)," he said.

In Trenton, meanwhile, the effect of the high court's decision is up in the air.

Still to be decided is whether the referendum on the 2004 ordinance will proceed. The Supreme Court sent the case back to Superior Court to resolve the issue of the referendum.

Dougherty called the ruling an "enormous" victory for the public and for the group that filed the petition. "This is a nice clean win," he said.

Most followers of the case say former deputy chiefs Paul Meyer, Al Henry and John Gabauer are unlikely to return to their positions, but their positions may reappear.

Rocky Peterson, who represented the city in the case, said the city relied on the 40 years of case law and legally, that's been cleared up by the high court. But practically speaking, Peterson said he still does not believe the court's decision that voters should have a say in administrative decisions nd it is not a benefit to citizens.

"(This ruling) benefits three people who aren't there any more," Peterson said.

Peterson and city spokesman Kent Ashworth said nothing in the ruling invalidates the state Department of Personnel decision approving the abolishing of the deputy chief positions for "efficiency."

Ashworth said crime is down since 2004, police response times are up and the city has proven their efficiency without the positions.

Henry, one of the retired chiefs, credited Dougherty's persistence, and said simply of the ruling, "We knew this would happen."

 ORAL ARGUMENTS VIDEO

 Read the NJ Supreme Court Ruling....