DANIEL TUMPSON, RUSSELL HOOVER, ERIC VOLPE, CHERYL FALLICK, and JOEL HORWITZ (“COMMITTEE OF PETITIONERS”), Petitioners-PlaintiffsRespondents

/Cross-Appellants v. JAMES FARINA, in his capacity as Hoboken City Clerk, and the CITY OF HOBOKEN, Respondents-DefendantsAppellants/Cross-Respondents and MILE SQUARE TAXPAYER ASSOCIATION 2009, INC., GINA DeNARDO, individually and on behalf of all similarly situated and 611-613 LLC, individually and on behalf of all similarly situated, Respondents-IntervenorsAppellants/Cross-Respondents

SUPREME COURT OF NEW JERSEY Docket No: 072813 On Certification from a Final Judgment of the Appellate Division of the Superior Court of New Jersey (No. A-545410T4) Sat below: Hon. Clarkson S. Fisher, Jr., P.J.A.D., Carmen H. Alvarez, J.A.D., and Jerome M. St. John, J.A.D.

BRIEF OF PETITIONERS DANIEL TUMPSON, ET AL., IN RESPONSE TO THE BRIEF OF AMICI CURIAE

Renée Steinhagen, Esq. NEW JERSEY APPLESEED PUBLIC INTEREST LAW CENTER, INC. 744 Broad Street, Suite 1600 Newark, New Jersey 07102 (973) 735-0523 steinhagen_pilc@yahoo.com Flavio L. Komuves, Esq. ZAZZALI, FAGELLA, NOWAK, KLEINBAUM & FRIEDMAN One Riverfront Plaza, Suite 320 Newark, New Jersey 07102 (973) 623-1822 fkomuves@zazzali-law.com Co-counsel for Petitioners

FLAVIO L. KOMUVES, ESQ., No. 1889-1997 RENÉE STEINHAGEN, ESQ., No. 3869-1989 On the Brief

TABLE OF CONTENTS

Page No.

I.

BASED ON ITS TEXT AND HISTORY, THE NEW JERSEY CIVIL RIGHTS ACT PROTECTS AGAINST ALL VIOLATIONS OF STATE LAW SUBSTANTIVE RIGHTS, AND IS NOT LIMITED TO THOSE STATUTES PROTECTING CIVIL LIBERTIES..................................................1 THE PETITIONERS SUCCESSFULLY VINDICATED STATUTORY RIGHTS RELATING TO THE CIVIL LIBERTIES OF VOTING AND THE RIGHT TO PETITION FOR REDRESS OF GRIEVANCES.................................................7

II.

III. ALTHOUGH MANY MUNICIPAL LAWS ARE NOT SUBJECT TO NJCRA ENFORCEMENT, THE REFERENDUM PROVISIONS OF THE FAULKNER ACT CONTAIN JUDICIALLY-RECOGNIZED RIGHTS-CREATING LANGUAGE...................................8 CONCLUSION.....................................................13

TABLE OF AUTHORITIES

CASES

Page No(s).

AMG Associates v. Springfield Twp., 65 N.J. 101 (1974)..........9 Blessing v. Freestone, 520 U.S. 329 (1997).....................10 Cerdel Const. Co., Inc. v. Twp. Comm. of E. Hanover Twp. in Morris Cnty., 86 N.J. 303 (1981)...................9 City of Newark v. Padula, 26 N.J. Super. 251 (App. Div. 1953)...........................................3 Cyktor v. Aspen Manor Condo. Ass’n, 359 N.J. Super. 459 (App. Div. 2003).......................3 DiProspero v. Penn, 183 N.J. 477 (2005).......................3,6 In re Ordinance 04-75, 192 N.J. 446 (2007)....................2,8 In re Petition for Referendum on City of Trenton Ordinance 09-02, 201 N.J. 349 (2010).......................8 M. A. Stephen Const. Co., Inc. v. Borough of Rumson, 125 N.J. Super. 67 (App. Div. 1973)........................9 Mun. Council of City of Newark v. James, 183 N.J. 361 (2005).......................................10 Reynolds v. Sims, 377 U.S. 563 (1963)...........................8 Trap Rock Indus., Inc. v. Kohl, 59 N.J. 471 (1971)..............9 Yick Wo v. Hopkins, 118 U.S. 356 (1886).........................8 Zoffer v. Crane, 120 N.J. Super. 538 (App. Div. 1972)...........3 CONSTITUTIONAL PROVISIONS N.J. Const., art. VI, § 5, ¶ 4.................................12 U.S. Const., amend. I...........................................8

ii

STATUTES N.J.S.A. 2A:53A-21..............................................1 N.J.S.A. 10:6-2(c)............................................2,7 N.J.S.A. 40:69A-184 et seq......................................4 N.J.S.A. 40:69A-185.............................................8 N.J.S.A. 40:69A-191............................................12 LEGISLATIVE MATERIALS Assembly Bill 2073, 211th Leg. ..................................3 Assembly Bill 2073, First Reprint (May 6, 2004).................3 Assembly Bill 2073, Second Reprint (June 10, 2004)..............3 Assembly Bill 2073, Third Reprint (June 24, 2004)...............3 Assm. Judiciary Comm., Statement to Assembly No. 2073 (Feb. 19, 2004)..........................................5,6 Gov. James McGreevey, Statement Upon Signing Assembly Bill Number 2073 (Sept. 10, 2004)........................4,5 Legislative Fiscal Estimate to A-2073 (Mar. 22, 2004)...........6 Senate Bill 1558, 211th Leg. ..................................3,4 Senate Bill 1558, First Reprint (May 6, 2004)...................4 Senate Bill 1558, Second Reprint (June 10, 2004)................4

iii

On

behalf

of

Petitioners/Cross-Respondents,

this

Brief

responds to the amicus curiae submission on behalf of the New Jersey State League of Municipalities (“NJSLOM”) and the New Jersey Institute of Local Government Attorneys (“NJILGA,” and with NJSLOM, the “amici”). I. BASED ON ITS TEXT AND HISTORY, THE NEW JERSEY CIVIL RIGHTS ACT PROTECTS AGAINST ALL VIOLATIONS OF STATE LAW SUBSTANTIVE RIGHTS, AND IS NOT LIMITED TO THOSE STATUTES PROTECTING CIVIL LIBERTIES.

The central thesis of the amici is that the New Jersey Civil Rights Act (“NJCRA”), based on its text, legislative

history, and policy considerations, can only be invoked against government or state actors when a plaintiff is alleging a

violation of constitutional rights or “that subset of state laws which protect against the deprivation of civil liberties.” Brf. 6). (Am.

Other than the New Jersey Law Against Discrimination

(“NJLAD”) and perhaps the statutory cause of action for a bias crime, N.J.S.A. 2A:53A-21, (see Am. Brf. 7), the amici fail to identify any other rights-granting statute that the NJCRA was intended to supplement. The amici also fail to provide a

definition of what constitutes a “civil liberty” that supposedly limits the NJCRA. Thus, the amici’s proposed framework for

distinguishing “civil liberty” statutes that can be vindicated under the NJCRA, and those that cannot, starts off on a poor footing, and very muddled in its implications.

Given the statute’s language, it may not be taken seriously that in passing the NJCRA, the Legislature intended to

supplement only the NJLAD and the bias-crimes causes of action. Surely, the Legislature must have contemplated more than those two statutes when, in N.J.S.A. 10:6-2(c), it authored a

substantive provision allowing suit by, inter alia, persons who have been subjected to a deprivation of “any substantive rights, privileges or immunities secured by the Constitution or laws of this State” (emphasis added). As a matter of statutory construction, the term “any” is synonymous with “all.” As this Court explained in a seminal

case on initiative and referendum law under the Faulkner Act, In re Ordinance 04-75, 192 N.J. 446, 461 (2007): Here, based on its statutory context, the word “any” clearly is synonymous with the word “all.” Webster’s Unabridged Dictionary of the English Language 96 (2001) (noting that “any” is generally understood to be synonymous with “all”); Black’s Law Dictionary 86 (5th ed. 1979) (giving various definitions of “any” including, “one out of many,” “an indefinite number,” and “some,” but recognizing that “any” is “often synonymous with ‘either,’ ‘every,’ or ‘all’“ and that “[i]ts generality may be restricted by the context”). See, e.g., Downey v. Bd. of Educ. of Jersey City, 74 N.J. Super. 548, 552 (App. Div. 1962) (finding “no ambiguity in the words `any office, employment or position’” within N.J.S.A. 40:69A-208(a) of Faulkner Act, as “[t]hey are words commonly used, easily understood and plainly all-inclusive”). The next key word to examine in N.J.S.A. 10:6-2(c) is the term “substantive.” In general, the term “substantive” means

2

something

that

is

not

a

“remedy”

or

something

that

is

not

“procedural.”

See, e.g., City of Newark v. Padula, 26 N.J.

Super. 251, 263 (App. Div. 1953); see also Cyktor v. Aspen Manor Condo. Ass’n, 359 N.J. Super. 459, 470 (App. Div. 2003); Zoffer v. Crane, 120 N.J. Super. 538, 540 (App. Div. 1972). The words “any,” “substantive,” and “rights” are words that can be clearly understood without extrinsic materials. statute that grants a remedy to a person deprived Thus, a of “any

substantive rights . . . secured by the . . . laws of this State” is capable of being understood according to its plain meaning. As such, resort to legislative history is

inappropriate.

DiProspero v. Penn, 183 N.J. 477, 492 (2005).

If, however, the Court deemed it appropriate to consider legislative history, the competent materials fully support the Petitioners’ arguments. The word “any” and the phrase

“Constitution and laws” were in every version of the Assembly and Senate Bill. These words were in the original version of

Assembly Bill 2073, the First Reprint of May 6, 2004; the Second Reprint of June 10, 2004; and the Third and final Reprint of June 24, 2004. word It was in the last of these Reprints that the was added between “any” and “rights” in

“substantive”

Section 2(c) of the bill, as a result of a floor amendment by Assemblyman Cohen. Similarly, the word “any” and the phrase

“Constitution and laws” were in every version of Senate Bill 3

1558: its initial introduction on May 6, 2004; its First Reprint of May 6, 2004, and its Second and final Reprint of June 10, 2004. To the extent that legislative history is cognizable in this case, then, there is an unwavering pattern of the

Legislature acting to protect “any” “right” that is secured by “the Constitution and laws.” bill, those identical words Between the Assembly and Senate were used in seven different

versions of the legislation (with “substantive” being added at the very end of the process). bills used identical, In sum, multiple versions of the language, to describe the

expansive

substantive statutory rights that they are meant to protect. Legislative history of this nature fully supports Petitioners’ thesis that the NJCRA should be read broadly to protect a

variety of statutory rights, including the statutory right of referendum enshrined in N.J.S.A. 40:69A-184 et seq. The amici dwell on two items of legislative history that they contend support their position. First, they selectively

quote from Governor McGreevey’s signing statement that refers to “constitutional rights” and not statutory ones (Am. Brf. 7), implying that the statute ought to be they of reserved overlook the for the

constitutional Governor’s

violations. in the

However, prior

remarks

paragraph

signing

statement, where he declares that the NJCRA provides redress for 4

violations of “rights . . . secured by either . . . the laws or Constitution of New Jersey.” The Governor expressly

acknowledged that the NJCRA is mean to vindicate “substantive rights” that are “secured by either” the laws or the

Constitution.

As the Respondents have ably pointed out, most

(but not all) NJCRA cases arise from claims of constitutional violations, yet the legislative text remains “Constitution or laws,” and any suggestion that the statute is limited to the federal or state Constitution is without support in the

statutory language. Amici’s statement is reliance no more on the Assembly The Judiciary Judiciary Committee’s Committee’s

compelling.

statement says that among the purposes of the NJCRA, it was intended to “address potential gaps” in two statutory laws, the NJLAD and the bias crimes civil action statute. That, of

course, may have been one intended purpose of the NJCRA, but it was not the only one. The more general purpose of the

legislation, according to that same committee statement, was the “necess[ity] to provide a remedy when one person interferes with the rights of another,” and to provide “a State [emphasis in original] remedy for deprivation of or interference with . . .

5

civil rights.”

(Assm. Judiciary Comm., Statement to Assembly

No. 2073 (Feb. 19, 2004)).1 Legislative history is an appropriate item to consider when the words of the statute are vague. history can supply meaning or That is to say, legislative to a vague word or

context

provision in the statute. read to contradict or

But legislative history should not be vary the plain terms of the actual

statute; it cannot be used to support a “presum[ption] that the Legislature intended a result different from the wording of the statute.” DiProspero, 183 N.J. at 493. Yet, that is precisely

what the amici ask of this Court.

According to them, a passing

reference, in one committee statement, to two sets of statutory

1

The Legislative Fiscal Estimate to A-2073 (Mar. 22, 2004) said that one of the effects of the NJCRA was a “[p]otential[] increase[ in] the number of individuals suing the State.” If the NJCRA were simply adding remedies to the NJLAD or a law authorizing a civil action against the perpetrator of a bias crime, it would be strange indeed to say that the law created a risk of more people suing the State. The Fiscal Note therefore rightly predicted that the NJCRA could be used by people beyond the existing pool of NJLAD plaintiffs or bias crime victim plaintiffs, and is consistent with the Petitioner’s thesis that the NJCRA is far more expansive than the crabbed reading offered by the amici. Moreover, the OLS-prepared Fiscal Estimate further proves that the Legislature knew that the NJCRA might increase costs to the public fisc, yet determined that robust enforcement of civil rights against infringement from government officials was more important. The amici’s policy argument that costs to municipalities should result in a narrow reading of the NJCRA (Am. Brf. 10) cannot stand in light of the Legislature’s knowing determination that the successful vindication of priceless civil rights outweighs a slight impact on municipal treasuries. 6

rights that are intended to be enhanced by the NJCRA, means that those are the only sets of statutory rights that the NJCRA was meant to protect. But such an interpretation would vary the

actual language of the statute, where “any substantive rights . . . secured by . . . the laws of this State” are protected by the NJCRA, N.J.S.A. 10:6-2(c), and would be inconsistent with other portions of the legislative history. II. THE PETITIONERS SUCCESSFULLY VINDICATED STATUTORY RIGHTS RELATING TO THE CIVIL LIBERTIES OF VOTING AND THE RIGHT TO PETITION FOR REDRESS OF GRIEVANCES.

Even if the Court were to follow the path suggested by the amici, and read the broad language of the NJCRA as applying only to laws protecting the civil liberties, rights the NJCRA would still here

protect

Plaintiffs’

here.

Petitioners

successfully vindicated two quintessential civil liberties – the right of the citizens of Hoboken to vote on a referendum on rent control, a crucial local issue, and the concomitant statutory right to petition government for redress of grievances. Respondents have crassly dismissed Petitioner’s suit as The “[a]

claim grounded in politics,” (Resp. Opp. Cert. 6) but fail to appreciate its impact or on the elective petition franchise rights. and

constitutional

voting

statutory

Without

this lawsuit, there would have been no referendum, and those rights would have been denied. The right to vote is a crucial

one that is preservative of all other civil and constitutional 7

rights.

Reynolds v. Sims, 377 U.S. 563 (1963) (quoting Yick Wo The right to petition U.S. Const., amend. I. proffered by amici,

v. Hopkins, 118 U.S. 356, 370 (1886)). enjoys a similarly exalted position. Thus, even under the narrow reading

Petitioners prevail

because

they have successfully

vindicated

statutory voting and petition rights. III. ALTHOUGH MANY MUNICIPAL LAWS ARE NOT SUBJECT TO NJCRA ENFORCEMENT, THE REFERENDUM PROVISIONS OF THE FAULKNER ACT CONTAIN JUDICIALLY-RECOGNIZED RIGHTS-CREATING LANGUAGE. The amici’s alternate thesis is that if the Court accepts that the NJCRA encompasses all rights-creating statutes, and not just “civil liberties” statutes, the Petitioners should still lose their NJCRA case because the rights of referendum conferred by N.J.S.A. 40:69A-185 do not “create a statutorily enforceable right.” (Am. Brf. 11). To prevail on this point, amici would

have to vanish this Court’s use of the term “right” when it discussed the voters’ power of referendum, no less than

seventeen times in its opinion in In re Ordinance 04-75, 192 N.J. 446 (2007), and no less than twelve times in its opinion in In re Petition for Referendum on City of Trenton Ordinance 0902, 201 N.J. 349 (2010). Referendum is a “right,” not merely an As such, it deserves heightened

“interest” or a “privilege.” protection.

8

To be sure, there are many aspects of municipal law that concededly do not confer rights enforceable under the NJCRA. For example, amici rightly say that disappointed bidders on a public contract have no “right” to the contract that could be enforced through the NJCRA and its remedies. (See Am. Brf. 5-

6); see also Trap Rock Indus., Inc. v. Kohl, 59 N.J. 471, 481 (1971); M. A. Stephen Const. Co., Inc. v. Borough of Rumson, 125 N.J. Super. 67, 74 (App. Div. 1973) (though disappointed bidder can sue if wrongfully denied a contract, the ability to sue “was not thereby intended to create or establish in the bidder

entitled to the award of the contract a right”).

Nor, for

example, does a landowner have a “right” to a zoning variance that would allow him a more profitable use of his property. Cerdel Const. Co., Inc. v. Twp. Comm. of E. Hanover Twp. in Morris Cnty., 86 N.J. 303, 307 (1981). Thus, a person suing to

overturn the denial of a zoning variance is certainly entitled to their day in court, but would almost never be entitled to combine such a claim with an action under, and the remedies of, the NJCRA.2 Likewise, where a mayor and council in a Faulkner

2

One possible exception to this rule would be a situation where the denial of a zoning variance resulted in the property being “restrain[ed] against all reasonable use” which would “amount[] to a taking without compensation” in violation of the Fifth Amendment. AMG Associates v. Springfield Twp., 65 N.J. 101, 112 (1974). In such case, that would be a constitutional wrong, not just the statutory denial of a zoning application. But claims that a municipality has denied all economically viable use to a 9

Act

municipality of

accuse

one

another set forth

of by

transgressing law, the

the Court

boundaries

their

power

“resolve[s] a discrete governance dispute between City Council and the Mayor based on strict principles of statutory

interpretation.”

Mun. Council of City of Newark v. James, 183 That would be a quintessential example of who is not alleging the violation of a

N.J. 361, 370 (2005). a person or entity

statutorily-enforceable State right, but is merely alleging a violation of State law, and thus, is not entitled to relief under the NJCRA. (See Am. Brf. 11 (citing Blessing v.

Freestone, 520 U.S. 329 (1997)). But the right bound up of referendum voting is different. and it It has is been

inextricably

with

rights,

defined as a statutory “right” by this and other courts of this State, including the Appellate Division here. A right so

important should have a meaningful enforcement mechanism that will deter municipal officials from violating the rights of the people that possess it. Without the enforcement mechanisms of

the NJCRA, an official who deprives citizens of petition rights might be sued, and might be overturned, but suffers no

consequences beyond a judicial ruling voiding his action.

There

landowner are not common in routine planning and zoning cases, and thus, there is no reason to fear that the NJCRA and its remedies would apply to run-of-the-mill land use cases. 10

is virtually no deterrent.

And in such a case, the ability of a

petitioners’ committee to find counsel to take up such a case will often be frustrated. Violations of the right to referendum

are not enforced without cost to the petitioners by the Attorney General, or the county prosecutors, or by existing or abolished agencies of the State Government. interest lawyers are the ones Private law firms and publicwho take on such cases to

vindicate the right to vote and the right to petition.

Holding

that the NJCRA does not apply to such cases would enrich and embolden citizen law-breaking advocates municipal officials, and impoverish rights, and

exercising

their

statutory

generate contempt for the rule of law. be consistent with the NJCRA’s or

Such a result would not proclamation that by “any the

substantive

rights,

privileges

immunities

secured

Constitution or laws of this State” can be defended with its remedies. The amici’s last argument is that found there within is the some four

comprehensive

enforcement

mechanism,

corners of the Faulkner Act, which puts the rights and remedies of the NJCRA outside the reach of Petitioners. While the

existence of such an

enforcement scheme in the Faulkner Act

itself might be enough to defeat Plaintiff’s NJCRA case, the fact is there is no such scheme. Indeed, amici cannot even

point to any statute with a comprehensive enforcement mechanism. 11

Instead,

they

look

to

the

provisions

of

the

New

Jersey

Constitution that preserve the judiciary’s right to hear cases in the nature of prerogative writs, in the manner and means dictated by court rules. VI, § 5, ¶ 4). (Am. Brf. 14 (citing N.J. Const., art.

The one statute they point to, N.J.S.A. 40:69A-

191 talks about the rights of voters if a council fails to pass a requested ordinance, not the right of voters to go to court if a clerk fails to process a filed petition in accordance with law, or their remedies if they prevail. this context. may have been That makes no sense in

Simply put, while the authors of the Faulkner Act proud of their “composite effort” to reform

municipal government (see

Am. Brf. 17), they said and wrote

nothing about a comprehensive enforcement scheme for violations of the initiative and referendum provisions of the Faulkner Act, such as who could bring the action, where it could be brought, within what time, who could be made parties defendant, and what damages, costs, or fees, could be awarded to the litigant that prevailed. Given the absence of such a scheme, the NJCRA is

appropriate vehicle for rebuffing municipal interference with the statutorily-protected rights of citizens.

12

CONCLUSION For these reasons, the Court should reject amici’s

arguments supporting a narrow interpretation of the NJCRA, and should also reject the claims that the rights vindicated by Petitioners are not within the NJCRA’s protections.

Respectfully submitted, ZAZZALI, FAGELLA, NOWAK, KLEINBAUM & FRIEDMAN By:_____________________________ FLAVIO L. KOMUVES NEW JERSEY APPLESEED PUBLIC INTEREST LAW CENTER, INC. By: _____________________________ RENÉE STEINHAGEN Dated: January 31, 2014

13