in re: jackson township initiative -- brief to trial court -- nj appleseed pilc

8/22/2019 In re: Jackson Township Initiative -- brief to trial court -- NJ Appleseed PILC

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In the Matter of an Initiative Petition forthe Adoption of An Ordinance to Amendthe Jackson Township AdministrativeCode

Mayor and Township Council of JacksonTownship,

Petitioners

- and -

Nicolas Antonoff, Catherine V. Giancola,Richard F. Davidson, Raymond J.Cattonar, and Roger E. Downing,

Interested Parties

SUPERIOR COURT OF NEW JERSEYLAW DIVISIONOCEAN COUNTY

Docket No. OCN-L-1217-13

BRIEF OF INTERESTED PARTIES NICOLAS ANTONOFF, CATHERINE V.

GIANCOLA, RICHARD F. DAVIDSON, RAYMOND J. CATTONAR, AND ROGER E.

DOWNING, IN OPPOSITION TO PETITIONERS MOTION FOR SUMMARY

JUDGMENT AND IN SUPPORT OF CROSS-MOTION FOR SUMMARY

JUDGMENT

ZAZZALI, FAGELLA, NOWAK,

KLEINBAUM & FRIEDMANOne Riverfront Plaza, Suite 320Newark, New Jersey 07102(973) [email protected]

NEW JERSEY APPLESEEDPUBLIC INTEREST LAW CENTER, INC.744 Broad Street, Suite 1525Newark, New Jersey 07102(973) [email protected]

Co-counsel for Interested Parties NicolasAntonoff, Catherine V. Giancola, Richard F.Davidson, Raymond J. Cattonar, and Roger E.Downing

FLAVIO L. KOMUVES, ESQ.RENE STEINHAGEN, ESQ.On the Brief
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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TABLE OF CONTENTS

Page No.

SUMMARY OF THE ARGUMENT ............................................................................... 1

PROCEDURAL HISTORY, FACTUAL BACKGROUND, ANDRELEVANT STATUTORY FRAMEWORK ................................................................... 7

ARGUMENT

I. THE PETITION IS NOT RIPE FOR RESOLUTION, EITHERUNDER GENERAL PRINCIPLES OF JUSTICIABILITY, ORTHE DECLARATORY JUDGMENTS ACT. ...................................................... 12

II. IF THERE ARE ANY DEFECTS IN SUBSECTION C ORSUBPARAGRAPH D(9) OF THE ORDINANCE, THE ROBUSTSEVERABILITY CLAUSE IN THE PROPOSED ORDINANCEREQUIRES THE REMAINING UNCHALLENGED PORTIONSOF THE ORDINANCE TO BE PRESENTED TO THE VOTERS

AT THE BALLOT. .............................................................................................. 20

III. THE REFERENCE TO SECTION 3-87, CORRECT WHEN THEDRAFTING PROCESS OF THIS ORDINANCE BEGAN,CANNOT BE USED TO DEPRIVE THE JACKSONELECTORATE OF THE RIGHT TO VOTE ON THIS

ORDINANCE, AND SHOULD INSTEAD BE CORRECTEDUNDER THIS COURTS ELECTORAL SUPERVISORYPOWERS. ............................................................................................................ 22

IV. SUBSECTION C AND SUBPARAGRAPH D(9) OF THEPROPOSED ORDINANCE ARE VALID EXERCISES OFLOCAL MUNICIPAL POWER ........................................................................... 24

A. Subsection (C) of the Proposed Ordinance does not violatethe Open Public Meetings Act. ................................................................ 26

B. Subparagraph D(9) does not violate the Faulkner Act, theRules of Professional Conduct, or the Shared Services Act. ................... 29

CONCLUSION............................................................................................................... 32


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TABLE OF AUTHORITIES

CASES Page No(s).

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ................................................................................................... 13

Application of Fisher,80 N.J. Super. 523 (App. Div. 1963), aff'd, 43 N.J. 368 (1964) .............................. 23

Atlantic City Housing Action Coalition v. Deane,181 N.J. Super. 412 (Law Div. 1981) ....................................................................... 15

Califano v. Sanders,430 U.S. 99 (1977) ..................................................................................................... 13

City of Newark v. Benjamin,144 N.J. Super. 58 (Ch. Div.), affd o.b., 144 N.J. Super. 389 (App.Div. 1976), affd, 75 N.J. 311 (1978) ........................................................................ 14

Fanelli v. City of Trenton,135 N.J. 582 (1994) .............................................................................................. 24,25

Gormley v. Lan,181 N.J. Super. 7 (App. Div.), affd, 88 N.J. 26 (1981) ............................................ 24

Hamdan v. Rumsfeld,

548 U.S. 557 .............................................................................................................. 13

Hamilton Twp. Taxpayers Assn v. Warwick,180 N.J. Super. 243 (App. Div.), certif. denied, 88 N.J. 490 (1981) ................... 13,14

Hutton Park Gardens v. West Orange Town Council,68 N.J. 543 (1975) ..................................................................................................... 25

In re Ordinance 04-75,

192 N.J. 446 (2007) ................................................................................... 8,9,18,19,22

In re Ordinance 09-02,201 N.J. 349 (2010) ......................................................................................... 17,18,19

Indep. Realty Co. v. Twp. Of N. Bergen,376 N.J. Super. 295 (App. Div. 2005) ....................................................................... 19


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Inganamort v. Borough of Fort Lee,72 N.J. 412 (1977) ............................................................................................... 20,21

Janicky v. Point Bay Fuel,410 N.J. Super. 203 (App. Div. 2009) ....................................................................... 13

K. Hovnanian Cos. v. New Jersey Dept of Env. Prot.,379 N.J. Super. 1 (App. Div. 2005 ............................................................................ 13

Lawrence v. Schropf,174 N.J. Super. 624 (App. Div.), certif. denied, 85 N.J. 149 (1980) ................... 13,14

Lynch v. Town of West New York,115 N.J. Super. 1 (App. Div. 1971) ........................................................................... 15

McCrink v. West Orange,85 N.J. Super. 86 (App. Div. 1964) ........................................................................... 15

Narciso v. Worrick,176 N.J. Super. 315 (App. Div. 1980) ......................................................................... 8

Nat'l Fed'n of Indep. Bus. v. Sebelius,132 S. Ct. 2566 (2012) ............................................................................................... 20

New Orleans v. Dukes,427 U.S. 297 (1976) ................................................................................................... 25

OBoyle v. Longport,426 N.J. Super. 1 (App. Div. 2012) ........................................................................... 27

Paul Kimball Hosp. v. Brick Tp. Hosp.,86 N.J. 429 (1981) ..................................................................................................... 25

Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. Of

Adjustment, 397 N.J. Super. 335 (App. Div. 2008) ............................................. 23,24

Quick Chek Food Stores v. Springfield Twp.,

83 N.J. 438 (1980) ..................................................................................................... 25

Ringwood Solid Waste Mgmt. Auth. v. Ringwood,131 N.J. Super. 61 (Law Div. 1974) ......................................................................... 13


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Roseff v. Byram Twp.,___ N.J. Super. ____ (App. Div. decided & approved forpublication Jul. 10, 2013) ......................................................................................... 15

Singer v. Twp. of Princeton,

373 N.J. Super. 10 (App. Div. 2004) .................................................................... 24,25

Sparta Twp. v. Spillane,125 N.J. Super. 519 (App. Div. 1973),certif. denied, 64 N.J. 493 (1974) ................................................................................ 8

State v. Gartland,149 N.J. 456 (1997) ................................................................................................... 13

State v. Harvey,176 N.J. 522 (2003) ................................................................................................... 13

State by McLean v. Lanza,27 N.J. 516 (1958) ..................................................................................................... 20

State Troopers Non-Commissioned Officers Ass'n of New Jersey v.

New Jersey, 643 F. Supp. 2d 615 (D.N.J. 2009),aff'd, 399 F. App'x 752 (3d Cir. 2010) ................................................................. 25,26

Trade Waste Mgmt. Ass'n, Inc. v. Hughey,780 F.2d 221 (3d Cir. 1985) ...................................................................................... 20

United Prop. Owners Ass'n of Belmar v. Borough of Belmar,343 N.J. Super. 1 (App. Div. 2001) ...................................................................... 21,22

United States Railroad Retirement Board v. Fritz,449 U.S. 166 (1980) ................................................................................................... 26

Weiner v. Cnty. of Essex, 262 N.J. Super. 270 (Ch. Div. 1992) .................................. 20

STATUTES

Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. ....................................................... 5

N.J.S.A. 10:4-12 ...................................................................................................... 26,27

N.J.S.A. 2A:16-53 ........................................................................................................ 19


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N.J.S.A. 18A:18A-11 ................................................................................................. 6,30

N.J.S.A. 18A:18A-12(a)................................................................................................ 31

N.J.S.A. 19:3-6 ............................................................................................................. 24

N.J.S.A. 40:14B48 ........................................................................................................ 8

N.J.S.A. 40:55D62(b) ................................................................................................... 8

Faulkner Act, N.J.S.A. 40:69A-1 et seq. ........................................................................ 7

N.J.S.A. 40:69A-29(a) .................................................................................................. 22

N.J.S.A. 40:69A-40 ................................................................................................. 31,32

N.J.S.A. 40:69A-184 ...................................................................................................... 7

N.J.S.A. 40:69A-186 ...................................................................................................... 7

N.J.S.A. 40:69A-186 to -195 .......................................................................................... 7

N.J.S.A. 40A:11-5(1)(a)(1) ........................................................................................... 27

N.J.S.A. 40A:65-1 ................................................................................................... 30,31

N.J.S.A. 40A:65-4(a)(2) ................................................................................................ 30

40A:65-7(a)(3) ............................................................................................................... 30

Open Public Records Act, N.J.S.A. 47:1A-1 et seq. .................................................. 5,27

OTHER SOURCES

ACPE Opinion 59, 87 N.J.L.J. 741 (Nov. 19, 1964) .................................................... 29

ACPE Opinion 707, 184 N.J.L.J. 1183 (Jun. 26, 2006) .............................................. 29

Gordon & Magleby,Pre-Election Judicial Review of Initiatives andReferendums, 64 NOTRE DAME L.REV. 298 (1989) ........................................... 12,13,18

RPC 2.1 ................................................................................................................. 31


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RPC 5.4(c) ................................................................................................................. 31


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SUMMARY OF THE ARGUMENT

Voters in Faulkner Act municipalities, like Jackson Township, enjoy a unique

right that voters in non-Faulkner municipalities do not possess. Through the

initiative rights granted by that law, they have the right to be lawmakers, and

adopt most of the ordinances that the mayor and council can pass, including

establishing and changing the structure of a department of municipal government.

Between January and September 2012, nearly 1,000 registered voters of

Jackson Township signed a petition in support of an ordinance that would

reorganize the Townships Department of Law. The supporters of the Ordinance,

relying on a November 2011 fiscal and policy analysis, identified a solution for

taxpayers that made more sense than the current structure for rendering legal

services to the municipality. In place of the existing system where all legal work is

outsourced to law firms and paid for on an hourly basis, the advocates of the

Ordinance found and determined that it would be wiser for Jackson Township tohave an in-house, salaried, attorney and paralegal, with the reserved ability to

outsource for additional work if necessary, and with adequate public disclosure of

the outsourcing. As permitted by applicable law, the drafters of the ordinance

further stipulated that the Jackson Board of Education (BOE), if both the municipal

attorney and the Jackson BOE agreed, and if there was no prohibition on

implementing the arrangement under the Rules ofProfessional Conduct or other

law regarding conflict of interest, could use the services of the Townships new law

department.


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There is no dispute over the form and sufficiency of the initiative petition

used by the Ordinances supporters. However, deeming two discrete subparts of the

ordinance to be unwise, and complaining about a supposedly flawed numerical

section reference (a problem the Petitioners themselves created), the Mayor and

Council have launched an attack on the Ordinance as a whole, arguing that this

proposal should be stopped before the voters have their say on the matter.

As an initial matter, the Court should dismiss the Mayor and Councils action

because it is unripe for judicial resolution. Simply stated, the Townships voters

may approve or reject the proposal at the November election. And there may or

may not be other contingencies that affect the challenged subparts of the

Ordinance. At this point, the proposal is just that: aproposal, which is within the

authority of the citizens to initiate, that may or may not get the support of a

majority of participating voters, and might or might not be implemented in the way

Petitioners forecast. There is no justiciable threat from an ordinance that maynever be enacted, and despite the fact that this Ordinance is not yet law, the

Petitioners ask this court to make rulings about its validity.

The rule Petitioners are advocating is a principle that anyone who might be

affected by some aspect or clause of any legislative proposal such as a bill pending

in the Legislature, an ordinance on first reading before a freeholder board or

municipal council or has some complaint about section references in such a

proposal, has the right to come to court and ask a judge to stop the proposal, before

it is even adopted. What Petitioners are effectively asking for is that the Court


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open the floodgates to issuing pure advisory opinions on legislative proposals that

might or might not become law, and expose the Court to endless, expedited requests

to rule on such proposals. This is not permissible. At this stage of the lawmaking

process, objections to discrete parts of a proposals substance are not cognizable,

either under general principles of justiciability and ripeness, or under the narrower

terms of the Declaratory Judgments Act, which permits courts to resolve real

disputes, while mandating they not rule on hypothetical questions or render

advisory opinions. At this stage of the process, this case should be dismissed.

Next, while the Petitioners acknowledge that the clear and unambiguous

intent of the Ordinance is to modify the Townships Department of Law, they claim

that today, Section 3-87 of the Township Code deals with the planning board, and

not the Department of Law. What Petitioners neglect to tell the Court is that when

the ordinance was first drafted between November 2011 and January 2012, the

Department of Law was indeed codified at Section 3-87. While the petition processwas well underway, the Township recodified or renumbered its ordinances,

switching the Law Department to Section 3-89, while assigning the Planning Board

to Section 3-87. Positing that form should prevail over substance, the Petitioners

say that a minor flaw in the form of a numerical cross-reference is far more

important than the undisputed substance of the actual Ordinance, and that this

should cause the entire Ordinance to be stricken. Rather than the Draconian

solution offered by the Petitioners, which they themselves caused through their


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renumbering decision, the Court should simply authorize and direct the

substitution of the more updated reference number.

Proceeding, the Petitioners express their distaste for two provisions of the

Ordinance, one of which would increase governmental transparency and the other

of which offers the potential for additional savings for Jacksons property taxpayers.

But before addressing the substance of these complaints, Petitioners must first

vault two insurmountable obstacles. First, the Court has no ability to interfere with

legislation merely because it is allegedly unwise or undesirable. Local legislation

enjoys a presumption of validity, and those attacking it must meet a heavy burden

of showing its invalidity beyond a reasonable doubt. Petitioners complaints that

the proposal is unique (Pet. Brf. at 12), may cause potential awkward[ness] (id. at

14), might reallocate financial priorities (id. at 15), or lacks sufficient detail or

accountability (id. at 17), are political and policy arguments for a different audience:

the electorate that will ultimately decide whether this proposal goes forward. Theyare not cognizable in judicial proceedings.

The second obstacle Petitioners must overcome is the exceedingly broad

severability clause found in the Ordinance. In plain language, amplified by

statements of the citizen-legislators intent, the drafters and signers of the Initiative

clearly stated that should any part of the Ordinance be adjudged void or invalid,

they still wanted the remaining portions to stand. As such, even if the Court hears

and credits the Petitioners substantive arguments, the severability clause requires

that the remaining aspects of the Ordinance must still proceed to the ballot. In


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particular, the primary objective of the Ordinance, which is to move the townships

core legal activities from an outside, contracted-for counsel, to an in-house, salaried

function, is not even attacked by the Petitioners. Therefore, even if Subsection C

and/or Subparagraph D(9) (the two provisions they do attack) are problematic, the

severability clause saves the remaining parts of the Ordinance, and those

remaining parts must be submitted to the voters.

In any event, neither Subsection C nor Subparagraph D(9) are invalid.

Subsection C declares that before outside counsel is engaged, the municipal council

must be told of this engagement at a public meeting and the general reasons for it.

This provision covers contracts for professional legal services that otherwise do not

require council approval. Contrary to Petitioners hypotheticals, there is no

obligation to disclose privileged attorney-client information, litigation strategy,

bargaining positions or other confidential information, to satisfy such a disclosure

requirement. Rather, the council must simply be advised in a writing as to who isbeing engaged and why. Indeed, Petitioners reliance on the Open Public Meetings

Act for its attack on Subsection C is puzzling, because that law permits but does

not require limited confidentiality, for limited time periods for certain items of

municipal business. But neither payments to a vendor such as an outside counsel,

nor the approval of a contract with such a vendor, falls within any of the OPMAs

exceptions. On the contrary, under OPMA, the Open Public Records Act (OPRA),

and other law, citizens may request and receive financial information, legal billing,

and other information far more extensive than what Subsection C requires to be


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disclosed. The most that could be said about Subsection C is that it accelerates the

process of releasing public information that will be disclosed anyway. It certainly

does not require the precipitous disclosure of confidential matters, as Petitioners

contend.

As for Subparagraph D(9), the Petitioners objections are also misplaced.

Long-established professional ethics rulings state that when, as here, the board of

education is elected (and not appointed), the same person may serve as school board

and municipal attorney. Should any kind of conflict arise, the Ordinance, as well as

the RPCs, are clear that such person may not undertake both functions. As such,

there are no ethical prohibitions on the arrangement proposed by the Ordinance.

Moreover, while Petitioners spend a great deal of time discussing the intricacies of

the New Jersey shared services law, they overlook (1) a provision of that law saying

it does not apply where other legislation controls; and (2) the other legislation,

namely, the provisions of N.J.S.A. 18A:18A-11 et seq., which expressly allow thisarrangement.

In sum: this matter should not be in Court because it is unripe and seeks an

advisory opinion. If the court considers this matter, it can only judge the two

challenged portions on narrow grounds of invalidity, not on general concerns about

the wisdom or desirability of the ordinance. In any event, the two challenged

portions are completely lawful. Even if the Court disagrees and holds those two

challenged portions void, it must still apply the expansive severability clause and

only strike those portions, while allowing the balance to go to the ballot. Finally,


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the Court, as an exercise of supervision of the election process, should order the

replacement of references to section 3-87 with references to section 3-89, as was

originally known to, and intended by, all participants in this process.

PROCEDURAL HISTORY, FACTUAL BACKGROUND,

AND RELEVANT STATUTORY FRAMEWORK

In addition to the statements set forth in the Interested Parties Statement of

Undisputed Facts filed herewith, the Interested Parties provide the following

background factual information and legal framework of the laws surrounding

initiative and referendum.

Effective in July 2006, the voters of Jackson Township adopted the Mayor-

Council form of government under the Faulkner Act, N.J.S.A. 40:69A-1 et seq. In

adopting this form of government, the citizens of Jackson Township thus obtained

the power of initiative and referendum for local ordinances. Briefly stated, the

initiative power allows Jackson citizens to propose virtually any ordinance that is

within the power of its mayor and council to enact. N.J.S.A. 40:69A-184. The

statute lays out the rules about petition format, the submission to the clerk, the

formal presentation of the ordinance to the governing body and, if the governing

body rejects the proposal, how the matter is presented directly to the people at an

election. See N.J.S.A. 40:69A-186 to -195.

General supervision over the initiative and referendum process is exercised

by a five-member Committee of Petitioners, whose names appear on the petitions,

and who are the Interested Parties in this case. N.J.S.A. 40:69A-186 (Committee of


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Petitioners shall be regarded as responsible for the circulation and filing of the

petition and for its possible withdrawal as hereinafter provided).

A few narrow categories of ordinance are not subject to citizens initiative and

referendum powers. For example, ordinances making budget appropriations,

affecting zoning and planning, and regarding transfers of property for municipal

utility systems are beyond the scope of citizens lawmaking powers. See In re

Ordinance 04-75, 192 N.J. 446, 466 (2007) (budgets beyond the scope of referendum

powers); N.J.S.A. 40:55D62(b) (zoning and planning beyond the scope of

referendum powers); N.J.S.A. 40:14B48 (ordinance authorizing sale or transfer of

property to municipal authority for maintaining or operating utility system beyond

the scope of referendum powers).

However, it is beyond dispute that ordinances regulating the composition of

municipal departments and divisions are clearly within the power of citizens to

propose and adopt through the initiative process. See In re Ordinance 04-75, supra(ordinance regulating composition of, and authority within, city police department,

is a proper subject of referendum).

Even with the carve-outs for certain subjects described above, the courts have

repeatedly stated that initiative and referendum statutes are construed liberally, in

favor of public participation, because they are useful devices to encourage public

participation, and decrease public apathy and lethargy. Narciso v. Worrick, 176

N.J. Super. 315 (App. Div. 1980); Sparta Twp. v. Spillane, 125 N.J. Super. 519 (App.

Div. 1973), certif. denied, 64 N.J. 493 (1974).


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As the Supreme Court recently explained, the citizens exercise of initiative

and referendum rights is a check on the exercise of local legislative power,

fostering citizen involvement in the political affairs of the community. We have

suggested that the referendum statute in the Faulkner Act should be liberally

construed and applied that principle to a referendum provision in the Home Rule

Act to promote the beneficial effects of voter participation. In re Ordinance 04-75,

192 N.J. at 459 (quotation omitted).

When citizens invoke their initiative powers under the Faulkner Act, they

effectively step into the shoes of the elected lawmakers of the municipality the

mayor and council. In doing so, these citizens assume both the rights and

responsibilities of the mayor and council. Among other things, therefore, these

citizen-lawmakers cannot pass any ordinance that would be unconstitutional or

ultra vires as beyond the power of the municipal government to adopt. On the other

hand, however, these citizen-lawmakers enjoy a presumption of validity with regardto their actions, just as elected lawmakers enjoy, and have the capacity to make any

legal proposal, using any drafting methods that elected lawmakers may use.

The Ordinance that is the subject of this petition had its genesis in a

November 2011 report authored by two members of the Committee of Petitioners,

Mr. Cattonar and Ms. Giancola. These citizens, concerned with the cost of legal

representation for Jackson Township and its Board of Education, and after

consulting a number of knowledgeable professionals, proposed an alternative to the


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current system, which was to move most of the legal work from outside firms to an

in-house attorney and paralegal. (Cattonar Cert., Exh. A).

Aside from monetary savings, the study concluded that the development of

institutional knowledge by in-house personnel would benefit the township

government and taxpayers. (Id.) The study also pointed out that in-house legal

departments are utilized, with great success, in at least two adjoining

municipalities, Toms River and Howell. (Id.)

As a further means of realizing monetary savings and other intangible

benefits for taxpayers, Cattonar and Giancola proposed an innovative solution that

would further allow the Jackson Board of Education to use the services of the

Townships in-house attorney. (Id.) The desirability of such an arrangement was

endorsed by both state and county officials. (Id.)

In November 2011, Cattonar obtained a copy of the then-existing provisions

of Section 3-87 of the Jackson Township Administrative Code from the municipalclerk, and confirmed that this section, dealing with the Department of Law, was in

effect as of November 2011. Moving forward, Cattonar and the Interested Parties

arranged for the drafting of the petition and ordinance that is the subject of this

litigation. By early January 2012, this process was completed, and signature-

gathering efforts began. (Cattonar Cert., 9-10).

By the end of April 2012, Cattonar himself had collected about 350

signatures, with additional signatures collected by other petition supporters. (Id.,

11).


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On or about May 8, 2012, unbeknownst to Cattonar or the Interested Parties

at the time, the Township renumbered its Administrative Code, moving the section

on the Law Department from Section 3-87 to 3-89. Cattonar and the Interested

Parties only learned of this recodification in connection with the initiation of the

present litigation in May 2013. (Cattonar Cert., 12-13).

Ultimately, Cattonar and the Interested Parties filed the initiative petition

with close to 1,000 signatures on or about August 29, 2012, with a supplementary

petition filed September 12, 2012. Of the approximately 1,000 signatures on the

combined petitions, 764 were deemed valid. This exceeded the legal threshold to

move the initiative process forward. (Starkey Cert., Exh. B).

In accordance with the Faulkner Act initiative procedure, the proposed

Ordinance was formally presented to the Jackson Township Council, which rejected

it at an October 2, 2012 meeting. By operation of law, the Ordinance was to be

voted upon at the next general election that was more than 40 days after that date.Since it was too late for the November 2012 general election, the Ordinance was

placed on the ballot for the November 2013 election.

Since then, almost eight months passed before the Council took any further

action on the matter. In May 2013, the Mayor and Council commenced the present

declaratory judgment action, seeking a judgment that no aspect of the proposed

Ordinance should be submitted to the voters at the November 2013 election, and

forcing the Interested Parties to defend their action before the campaign on the

Ordinance even began. After the Interested Parties filed a timely Answer, counsel


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for the Petitioners and the Interested Parties conferred with one another and with

the Court, and agreed that this matter could properly be resolved on cross-motions

for summary judgment. Accordingly, the Court entered a scheduling Order dated

July 19, 2013, and these papers are submitted pursuant to that Order.

ARGUMENT

I. THE PETITION IS NOT RIPE FOR RESOLUTION, EITHERUNDER GENERAL PRINCIPLES OF JUSTICIABILITY, OR THE

DECLARATORY JUDGMENTS ACT.

In a seminal work on judicial review of citizen initiatives before they are

considered by the voters, Professors James Gordon and David Magleby demonstrate

that [m]ost courts will not entertain a challenge to a measures substantive validity

before the election takes place. Gordon & Magleby,Pre-Election Judicial Review of

Initiatives and Referendums, 64 NOTRE DAME L.REV. 298, 303 (1989). According to

the authors, there is a material difference between a substantive challenge and a

challenge that is procedural or that is a jurisdictional or subject matter

challenge. Id. at 303, 315. Here, there is no question that the Petitioners challenge

falls into the substantive category. This is because the main thrust of Petitioners

challenge is that there are 2 subparts of the Ordinance that conflict with

paramount law, id. at 302, here, state statutes and court rules.

Regarding substantive challenges, Gordon and Magleby conclude that it is

generally improper for courts to adjudicate pre-election challenges to a measures

substantive validity. Such pre-election review involves issuing an advisory opinion,

violates ripeness requirements, undermines the policy of avoiding unnecessary


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constitutional questions, and constitutes unwarranted judicial interference with a

legislative process. Id. at 298. New Jersey adheres to each of these principlesa

prohibition on advisory opinions,1 a prohibition on deciding unripe cases,2 and a

prohibition on judicial interference with the legislative process.3

These problems, which arise when a court is asked to decide a pre-election

substantive challenge, do not exist when the challenge is in the nature of a

procedural challenge, or a jurisdictional/subject matter challenge, wherein a

party claims that the entirety of a proposed initiative or referendum is beyond the

scope of the people to decide.

Indeed, New Jersey courts have entertained precisely those kinds of pre-

election procedural and jurisdictional/subject matter challenges. Illustrative

examples of procedural challenges include Hamilton Twp. Taxpayers Assn v.

1Janicky v. Point Bay Fuel, 410 N.J. Super. 203, 208 (App. Div. 2009) (our courtswill not issue an advisory opinion if there is no genuine controversy between theparties, and for a question to be justiciable, there must be an actual dispute

between parties who have a sufficient stake in the outcome.) (quotation omitted);see also State v. Harvey, 176 N.J. 522, 528 (2003) (quoting State v. Gartland, 149N.J. 456, 464 (1997)) (resolving issues in the abstract is not a proper judicialfunction).2K. Hovnanian Cos. v. New Jersey Dept of Env. Prot., 379 N.J. Super. 1, 9-10 (App.Div. 2005). The basic rationale of the ripeness doctrine is to prevent the courts,through avoidance of premature adjudication, from entangling themselves inabstract disagreements. Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967),overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977). Therefore,courts will not decide claims that are contingent [upon] future events that may notoccur as anticipated, or indeed may not occur at all. Hamdan v. Rumsfeld,548 U.S. 557, 720 (quotation omitted).3 Illustrative of this principle is Ringwood Solid Waste Mgmt. Auth. v. Ringwood,131 N.J. Super. 61 (Law Div. 1974), where the court refused to enjoin an ordinancebefore its second reading by a municipal council because of the general rule ofnoninterference by the judiciary with the legislative process.
http://scholar.google.com/scholar_case?case=1251834070131661299&q=ripeness&hl=en&as_sdt=4,31&as_ylo=2009http://scholar.google.com/scholar_case?case=1251834070131661299&q=ripeness&hl=en&as_sdt=4,31&as_ylo=2009http://scholar.google.com/scholar_case?case=1251834070131661299&q=ripeness&hl=en&as_sdt=4,31&as_ylo=2009http://scholar.google.com/scholar_case?case=1251834070131661299&q=ripeness&hl=en&as_sdt=4,31&as_ylo=2009http://scholar.google.com/scholar_case?case=1251834070131661299&q=ripeness&hl=en&as_sdt=4,31&as_ylo=2009http://scholar.google.com/scholar_case?case=1251834070131661299&q=ripeness&hl=en&as_sdt=4,31&as_ylo=2009


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Warwick, 180 N.J. Super. 243 (App. Div.), certif. denied, 88 N.J. 490 (1981), where

the issue of the propriety of the petition form was litigated, and Lawrence v.

Schropf, 174 N.J. Super. 624 (App. Div.), certif. denied, 85 N.J. 149 (1980) where the

issue of the sufficiency of the number of signatures was decided by a tribunal before

the election.

Jurisdictional challenges, which are also concededly proper before an

election, have also been entertained by New Jersey courts.

City of Newark v. Benjamin, 144 N.J. Super. 58 (Ch. Div.), affd o.b., 144 N.J.

Super. 389 (App. Div. 1976), affd, 75 N.J. 311 (1978), the case principally relied

upon by Petitioners, falls squarely into the category of jurisdictional challenges

that a court can properly address before an election. Benjamin dealt with an

ordinance that proposed a civilian police review board for the City of Newark. The

Court found that even assuming arguendo that a municipality could adopt some

kind of civilian police review board, the actual ordinance on the topic proposed inthat initiative petition would not only violate state law, but in some aspects was

pre-empted by state law. In particular, it was not capable of any saving or

narrowing construction, and as such, was void in its entirety on its face. Id. at 67.

No part of the ordinance, and no application of the ordinance, was within the

authority of the local council and thus permissible. As a result of the complete

invalidity of the ordinance, the Court felt it was appropriate to deviate from

acknowledged ripeness, advisory opinion, and separation of powers doctrines and

issue a ruling on the ordinances merits.


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The same is true in McCrink v. West Orange, 85 N.J. Super. 86 (App. Div.

1964). There, the Court found that the initiative on salaries proposed by petition

was a proposal that not even the municipal government could enact. There was no

part of the ordinance, or saving construction, that could be applied and as a result,

it was on its face, defective. Id. at 91.

Similarly, Lynch v. Town of West New York, 115 N.J. Super. 1 (App. Div.

1971) was an effort to change, by ordinance, the length of the terms of municipal

officials, a matter that was pre-empted by state legislation fixing the terms. Once

again, there was no valid part of the proposal, or saving construction; it was

inherently invalid in its entirety. Id. at 6.

Jurisdictional challenges to an initiative or referendum are also cognizable

before the election when the proposal is for something that is within the scope of

municipal powers, but beyond the scope of the citizens initiative or referendum

powers.InAtlantic City Housing Action Coalition v. Deane, 181 N.J. Super. 412 (Law

Div. 1981), the Court properly considered a pre-election challenge to an ordinance

on the grounds that while the municipal council was competent to pass an

ordinance regarding redevelopment projects, it was not a proper subject for a

referendum.

More recently, Roseff v. Byram Twp., ___ N.J. Super. ____ (App. Div. decided

& approved for publication Jul. 10, 2013), held that a budget ordinance, validly


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passed by the Council, and relating to cost-of-living adjustments in the municipal

budget, was not subject to challenge by referendum.

What each of the foregoing jurisdictional/subject matter cases have in

common with one another is that in each of them, courts intervened before the

election to stop an initiative or referendum that was invalid in its entirety, lacking

any valid portions or saving construction. In each of these matters, it was not

simply a case of initiative or referendum advocates engaging in innovative

lawmaking, but rather, their proposals werejurisdictionally flawed.

The litigation before this Court, however is not the type of procedural or

jurisdictional challenge to an initiative of the kind discussed above. Rather, this

is a substantive challenge. Specifically, the Petitioners here assert that two

subparts of the ordinance relating to public disclosure of the scope of outside

counsels work, and the offer to the Jackson Board of Education to receive services

from the municipal attorneyare defective. Thus, none of the foregoing cases helpthe Petitioners cause here. The core of the proposal before the Court is to require

Jackson Township to engage a qualified, salaried, in-house attorney, in place of

hourly billing arrangements now in place with other firms. Section 1 of the

ordinance alone has 4 subsections and nine subparagraphs. The specific complaints

of the Petitioners are limited to one of those four subsections and one of those nine

subparagraphs. Petitioners therefore cannot credibly allege that the ordinance is

defective on its face or in its entirety.


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Research has not revealed any New Jersey case where a court, in derogation

of the generally-applicable principles regarding ripeness, advisory opinions, and

separation of powers, has interfered with a legislative proposal that, as here, is only

alleged to be partially invalid. Every time such an exception to that rule has been

articulated it is because the ordinance was alleged to be void in its entirety, because

the people lacked jurisdiction to adopt or repeal such an ordinance at the ballot box.

In fact, the Supreme Court, if confronted with the issue of whether

substantive challenges are allowed in New Jersey, would likely say that the

answer is no, consistent with the majority view articulated in the Gordon and

Magleby article. Support for this is found in In re Ordinance 09-02, 201 N.J. 349,

352-53 (2010) where the Court proclaimed:

The Legislature has conferred on the voters of Faulkner Actmunicipalities, such as Trenton, the power of referendum, the right to

test a challenged ordinance in the crucible of the democratic process.The referendum power is one of the key provisions of the Faulkner Act.

It is an exercise in democracy that profoundly affects the relationshipbetween the citizens and their government by affording the people thelast word if they choose to take a stand against the wisdom of anordinance that the government has enacted. Thus, [w]hen a

referendum petition is properly filed, the voters have the final say inapproving or rejecting an ordinance at the ballot box.

Id. at 358-59 (citation omitted). This was a ringing endorsement of citizen

involvement in the political affairs of the community. Id. at 359-60. In addition,

by saying that the voters not a trial court acting on a declaratory judgment

petitionwould have the final say, after a petition is properly filed, id., that can

be read as a rejection of pre-election judicial review of the substance of an initiative,

while allowing procedural challenges. In addition, just three years earlier, when


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the Court decided the In re Ordinance 04-75 case, that decision represented a sea

change in judicial thinking about the initiative and referendum laws. Previously,

courts had disallowed initiatives relating to administrative matters while

permitting initiative addressing legislative matters. The Court swept away that

distinction, abrogating no less that 7 prior cases that had placed jurisdictional

limits on what kinds of ordinances could be tested at the ballot box. Put simply, the

unmistakable consequence ofIn re Ordinance 04-75and In re Ordinance 09-02has

been an expansion of the rights and remedies available to citizens who want to

engage in local lawmaking.

In the face of this liberalization of the rules that attend local lawmaking, it is

legitimate to ask whether the Supreme Court would countenance pre-suit

substantive challenges to initiatives. The Interested Parties believe the answer is

no. A lawsuit to strike an initiative or referendum from a ballot is one of the

deadliest weapons in the arsenal of the measures political opponents. With

increasing frequency, opponents of ballot proposals are finding the weapon

irresistible and are suing to stop elections. Gordon & Magleby, supra, 64 NOTRE

DAME L.REV. at 298. As is true of this case, the citizens have had to take the time

and expend efforts to engage counsel and resist the declaratory judgment action.

By any measure, such suits discourage initiative and referendum efforts. It is

unlikely that the Supreme Court, in the face of evidence that pre-election challenges

to an ordinances substantive validity hurt the initiative process, would allow such


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challenges after the kinds of rulings it made in In re Ordinance 04-75 and In re

Ordinance 09-02.

Aside from general principles of justiciability, the text and case law of the

Declaratory Judgments Act also counsels that the Court should abstain from

deciding the issue presented here. First, the voters might reject the proposal at the

ballot box (making any rulings on the ordinance moot). There are also other

contingencies and uncertainties that would also place any court ruling made here

into the realm of advisory opinions. For example, if the Jackson BOE declines to

exercise the rights given it by subparagraph D(9) of the Ordinance, many of the

objections raised by the Petitioners will be avoided.

The Declaratory Judgments Act, by its text, allows actions to determine

rights and relations under private documents such as deeds, wills, contracts, as well

as under public laws a statute, municipal ordinance, contract or franchise.

N.J.S.A. 2A:16-53. While the Act is proper to test the validity of an ordinance, it

mentions nothing about a proposed ordinance, as is the case here. Therefore,

textually, there is no basis for this Court to issue a ruling under the Act. In any

event, until the Ordinance passes, and until the parties with rights under it are

about to exercise those rights, all the Petitioners have done here is to present

hypothetical issues, not actual controversies. While this suit could certainly be

renewed after the Ordinance passes, at this point, it should be dismissed as

premature. Indep. Realty Co. v. Twp. Of N. Bergen, 376 N.J. Super. 295, 302 (App.

Div. 2005) (declaratory judgment is not an appropriate way to discern the rights or


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status of parties upon a state of facts that are future, contingent, and uncertain);

Weiner v. Cnty. of Essex, 262 N.J. Super. 270, 280 (Ch. Div. 1992) (The Declaratory

Judgments Act cannot be used to decide or declare the rights or status of parties

upon a state of facts which are future, contingent and uncertain).

II. IF THERE ARE ANY DEFECTS IN SUBSECTION C ORSUBPARAGRAPH D(9) OF THE ORDINANCE, THE ROBUST

SEVERABILITY CLAUSE IN THE PROPOSED ORDINANCE

REQUIRES THE REMAINING UNCHALLENGED PORTIONS OF

THE ORDINANCE TO BE PRESENTED TO THE VOTERS AT THE

BALLOT.

The drafters of the initiative petition at issue here included within it a

particularly robust severability clause. As an initial matter, there is no doubt that

a severability clause is a proper tool for a lawmaker to use, whether that lawmaker

is a citizen or an elected official. To that end, the courts have repeatedly

acknowledged and enforced severability clauses in statutes and ordinances. See

Inganamort v. Borough of Fort Lee, 72 N.J. 412, 421-22 (1977) (severability of rent

control ordinance); State by McLean v. Lanza, 27 N.J. 516, 527 (1958) (severability

of condemnation statute); Trade Waste Mgmt. Ass'n, Inc. v. Hughey, 780 F.2d 221,

231 (3d Cir. 1985) (severability of waste-control statute); see also Nat'l Fed'n of

Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2607 (2012) (severability of parts of

Obamacare).

Inganamort is particularly instructive in this matter. In that case, the

ordinance at issue contained a garden-variety severability clause that read as

follows: If any provisions of this ordinance or the application of such provision to

any person or circumstances is declared invalid, such invalidity shall not effect


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other provisions or applications of this act which can be given effect and, to this end,

the provisions of this act are declared to be severable. 72 N.J. at 421-22. The

Court observed that an express severability clause like this one was enforceable.

Even if the language of such a clause had been vaguer, the Court explained that the

case for such a clauses enforceability is substantially bolstered when there is

contemporaneous evidence of legislative intent of severability. Id. at 422.

The severability clause in this ordinance now before the Court is more than

just boilerplate, but rather, affirmatively states the intentions of the petitions

drafters, its signers, and its voters, that they wanted the ordinance to proceed even

if it was struck down in part. The clause reads:

The provisions of this Ordinance are severable. If any part of thisOrdinance, or application of this ordinance, shall be ruled illegal,unconstitutional or void, the remaining parts of this ordinance shall beunaffected by such ruling. Every person signing an initiative petition

proposing this ordinance, and every person voting to approve this

Ordinance, would have signed the petition and/or voted to approve this

ordinance notwithstanding the possibility that one or more parts ofthis Ordinance or applications of this Ordinance might be ruled illegal,unconstitutional or void.

(Starkey Cert., Exh. A. p. 4) (emphasis added). The intent of the citizen lawmakers

here, simply put, could not be clearer. They want this Ordinance to stand even if it

is partially invalidated.

A final inquiry into the severability of an ordinance is also performed by

studying whether the ordinance, without any invalidated portions, is still cohesive

enough to stand alone and form a complete act within itself. Inganamort, 72

N.J. at 422-23 (citations omitted); accord, United Prop. Owners Ass'n of Belmar v.


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Borough of Belmar, 343 N.J. Super. 1, 39 (App. Div. 2001) (We will enforce

severability where the invalid portion is independent and the remaining portion

forms a complete act within itself. Such is the case here, as the remaining

provisions present a viable legislative action, constitutionally sound, and capable of

lawful enforcement.) (citations omitted).

Here, even if Subsection C and Subparagraph D(9) were stricken, the

Ordinance would still terminate the Townships exclusive reliance on outside law

firms for its legal services, replacing them with a salaried, in-house staff rendering

most legal services to the Township. It should be beyond dispute that the citizens

have the right to vote at least on that aspect or the proposal, reorganizing a

municipal department and establishing or altering positions and employment.

N.J.S.A. 40:69A-29(a); In re Ordinance 04-75, supra. And, given the expansive text

of the severability clause in the petition that nearly 1,000 Jackson residents signed,

it should be beyond dispute that their specific intent and desire was to vote on atleast that aspect of the ordinance.

III. THE REFERENCE TO SECTION 3-87, CORRECT WHEN THEDRAFTING PROCESS OF THIS ORDINANCE BEGAN, CANNOT

BE USED TO DEPRIVE THE JACKSON ELECTORATE OF THE

RIGHT TO VOTE ON THIS ORDINANCE, AND SHOULD INSTEAD

BE CORRECTED UNDER THIS COURTS ELECTORAL

SUPERVISORY POWERS.

The circumstances under which the Ordinance came to list Section 3-87 as

the section of the Administrative Code it was amending have already been

explained in some detail. Briefly stated, when the Interested Parties began work on

the Ordinance in November 2011, the Codes provisions about the Department of


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Law appeared at Section 3-87. In May 2012, which was in the midst of the

petitioning process, the township council renumbered the Code and in so doing,

moved the material about the Department of Law to Section 3-89. The Interested

Parties, although they have no evidence this was done intentionally to thwart their

petition, were nevertheless not apprised of this change, and did not learn about it

until the instant litigation was filed.

The Interested Parties, therefore, began the petitioning process with the

correct reference in their documentation. The only reason that any error

subsequently arose was due to the Petitioners decision to renumber the

Administrative Code. There is not even a suggestion that there was an error that is

chargeable to the Interested Parties.

Moreover, there has never been any confusion that the objective of the

petition and the ordinance was to reform the Department of Law, and had nothing

to do with the Planning Board.It is a well-settled principled that the courts should not set aside legislation

for immaterial trivialities. Application of Fisher, 80 N.J. Super. 523, 531 (App.

Div. 1963), aff'd, 43 N.J. 368 (1964). Yet, that is precisely what the Petitioners are

asking this Court to do: disregard almost 1,000 signatures, collected with months of

citizens effort, all because there is a reference to section of the Administrative Code

that was correct when the ordinance was drafted, and that has become incorrect due

to action of the Petitioners. What is effectively a typographical, rather than a

substantive error, cannot invalidate an otherwise proper submission. See Pond Run


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Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment , 397 N.J. Super.

335, 349 (App. Div. 2008) (inconsequential typographical error did not affect

validity of notice to property owners, even where zoning applicant was solely

responsible for the error).

This is not to suggest that the Jackson electorate should be left without a

remedy because of the reference to Section 3-87. Rather, the remedy should simply

be something other than invalidation of the entire proposal.

The Interested Parties respectfully suggest that under N.J.S.A. 19:3-6 and

Gormley v. Lan, 181 N.J. Super. 7 (App. Div.), affd, 88 N.J. 26 (1981), the Court has

the inherent authority to modify the reference to section 3-87 and correct it to

section 3-89. They respectfully request that the Court do so here.

IV. SUBSECTION C AND SUBPARAGRAPH D(9) OF THE PROPOSEDORDINANCE ARE VALID EXERCISES OF LOCAL MUNICIPAL

POWER.

Before delving into the analysis of the validity of Subsection C andSubparagraph D(9), some observations about the scope of judicial review of

municipal ordinances are in order. Although the rules discussed below were

announced in the context of adopted ordinances, these principles are at least as

valid, if not more valid in the situation being addressed here, which is a proposed

ordinance.

First, there is a strong presumption in favor of the validity of legislation,

including municipal ordinances. Fanelli v. City of Trenton, 135 N.J. 582, 589

(1994); Singer v. Twp. of Princeton, 373 N.J. Super. 10, 19-20 (App. Div. 2004). The


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party questioning the validity of the legislation bears a heavy burden of proof and

persuasion in order to overcome that validity. Fanelli, 135 N.J. at 289; Singer, 373

N.J. Super. at 19. The presumption is not overcome, and a legislative enactment

will not be declared void unless the proofs of its invalidity are so manifest as to

leave no room for reasonable doubt. Singer, 373 N.J. Super. at 20 (citing Paul

Kimball Hosp. v. Brick Tp. Hosp., 86 N.J. 429, 447 (1981) (other citations omitted)).

Moreover, ordinances are presumed valid and reasonable. Hutton Park

Gardens v. West Orange Town Council, 68 N.J. 543, 564 (1975). The underlying

policy and wisdom of ordinances are the responsibility of those who draft and adopt

them and if any state of facts may reasonably be conceived to justify the ordinance,

it will not be set aside. Quick Chek Food Stores v. Springfield Twp., 83 N.J. 438,

447 (1980) (citing Hutton Park Gardens, 68 N.J. at 564-565).

The fact that there may be alternative or better approaches to adopt does

not invalidate an ordinance. Singer, 373 N.J. Super. at 24; see alsoState Troopers

Non-Commissioned Officers Ass'n of New Jersey v. New Jersey, 643 F. Supp. 2d 615,

624-25 (D.N.J. 2009), aff'd, 399 F. App'x 752 (3d Cir. 2010). Likewise, judicial

review of an ordinance or proposed ordinance is not a license for courts to judge the

wisdom, fairness, or logic of legislative choices, even if at best they can be described

as ill-advised, improvident decisions. Id. at 625 (quotations omitted). The judiciary

[may not] sit as a superlegislature to judge the wisdom or desirability of legislative

policy determinations made in areas that neither affect fundamental rights nor

proceed along suspect lines. Id. (quoting New Orleans v. Dukes, 427 U.S. 297, 303


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(1976)). Once a court finds there is a credible reason for a legislative action, the

law must be upheld.Id. (citing United States Railroad Retirement Board v. Fritz,

449 U.S. 166, 179 (1980) (other citations omitted)).

The Ordinance Study (Cattonar Cert., Exh. A), shows there are ample,

credible reasons for this legislation and in most respects, this ends the inquiry.

Petitioners general complaints about the uniqueness of some aspects of the

proposal, the chance it might generate potential awkward[ness], is financially

unwise, or lacks sufficient detail or accountability (Pet. Brf. at 12-17) are not

cognizable reasons to overturn the proposal. Nor are the specific objections

sufficient to eliminate Subsection C or Subparagraph D(9), as now discussed.

A. Subsection (C) of the Proposed Ordinance does not violate the Open PublicMeetings Act.

As an initial matter, there are no confidentiality obligations under the Open

Public Meetings Act as Petitioners claim. That statute permits but does not

require a municipal governing body to act in executive session when one of the

exceptions of N.J.S.A. 10:4-12(b) applies. By its terms, the statute says that [a]

public body may exclude the public only from that portion of a meeting where an

exception applies. Id. (emphasis added).

If Petitioners argument is really that they should be allowed to discuss (but

not award) a contract in executive session, or discuss litigation in executive session,

see N.J.S.A. 10:4-12(b)(7), the Interested Parties have no quarrel with that

assertion, and do not assert that the Ordinance would change their ability to do so.

But to the extent the Interested Parties are claiming that the Township or its


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agents should have a right to engage outside counsel without disclosing the fact of

the engagement, and its reasons, they are correct in saying that the Proposed

Ordinance would reinforce the existing prohibitions on that practice.

Specifically, under N.J.S.A. 40A:11-5(1)(a)(1), Jackson Township is already

obligated to, in each instance when it awards work to an outside firm in excess of

the State bid threshold, to state supporting reasons for its action in the resolution

awarding each contract and to also have printed in the official newspaper, a notice

stating the nature, duration, service and amount of the contract, and that the

resolution and contract are on file and available for public inspection in the office of

the clerk. Id. (emphasis added).

Moreover, the vote on the resolution to award of work to an outside firm

cannot be done in executive session, even if discussions of such award can take

place there. N.J.S.A. 10:4-12(a). In addition, not only the contract, but also detailed

legal bills and payment vouchers are disclosable to the public under the OpenPublic Records Act, N.J.S.A. 47:1A-1 et seq., both for bills under and over the State

bid threshold. SeeOBoyle v. Longport, 426 N.J. Super. 1 (App. Div. 2012). Indeed,

such disclosures are highlighted extensively at pp. 11-15 of the Ordinance Study.

Subsection C of the Ordinance is entirely consistent with these existing

disclosure requirements. It holds that any attempt to engage an outside firm

whether above the bid threshold amount or below for legal advice shall not be

effective until disclosure of the engagement is made in writing to the Municipal

Council at a public meeting.


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It is difficult to comprehend how a simple disclosure of who is being hired as

outside counsel, and the general reasons why, would breach any confidentiality

obligations. Certainly, nothing in the text of the ordinance requires the disclosure

of negotiating positions, litigations strategy and the like, as Petitioners imagine.

(Pet. Brf. at 11). While requiring disclosure of the identity of outside counsel, and

the purpose of the representation (for example, it might list a specific case name or

specific project), it does not require disclosing things like settlement ranges, the

timing of a qualified immunity motion, or other sensitive information. The identity

of counsel and the purpose of retention suffice.4

At bottom, Subsection C is a reaffirmance and extension of what is already

established law in New Jersey: that the names of vendors and the amounts they are

paid must be disclosed, and that contracts and legal bills (which by definition will

show who is performing the work and why) are public documents subject to

disclosure under OPRA. To be sure, Subsection C will make this informationavailable for public consumption more quickly, and in so doing, increase

accountability and transparency. But in their papers, the Petitioners have not

proven that requiring quicker disclosure of what is otherwise public information, is

an impermissible subject of local legislative action. Subsection C, thus, does not

violate or conflict with any state laws cited to this Court, and as such, cannot be

4 To the extent that privacy concerns of individual employees targeted withpotential disciplinary action are truly legitimate, the answer to Petitioners claims

is simple: under those narrow circumstances, the purpose of the disclosure will

recite that it is an employee disciplinary matter, while omitting the name. Since nospecifics are illustrated in Petitioners papers, this explanation will have to suffice.


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stricken from the Ordinance. Indeed, it is entirely consistent with state law

concerning disclosure of professional legal contracts.

B. Subparagraph D(9) does not violate the Faulkner Act, the Rules ofProfessional Conduct, or the Shared Services Act.

Since at least the 2004 abolition of the appearance of impropriety standard

in New Jerseys attorney ethics laws, it has been well-nigh indisputable that the

same person, without running afoul of ethics restrictions, may serve both a

municipal government and an elected board of education in the same municipality.

See ACPE Opinion 707, 184 N.J.L.J. 1183 (Jun. 26, 2006); ACPE Opinion 59, 87

N.J.L.J. 741 (Nov. 19, 1964). In the case of an actual conflict, that attorney cannot

serve either client on that matter, but as Opinion 707 indicates, instances of actual

conflict are very rare, generally being limited to the circumstances where a school

budget is rejected by the voters. (And since Jackson BOE elections are now held in

November, meaning there is no vote on the current expense budget, an instance of

actual conflict is highly unlikely).

It is thus too late to argue that, as a general matter, simultaneous service as

municipal and board of education attorney violates any applicable ethics provisions.

And, while the Petitioners posit instances where a conflict may occur, they fail to

illustrate any such problem concretely and with specificity. In the absence of such

evidence, Petitioners have not carried their burden of showing the invalidity of

Subparagraph D(9) by any evidentiary standard, much less the beyond a

reasonable doubt that they must meet as challengers here.


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Petitioners argument under the Shared Services Law, N.J.S.A. 40A:65-1,

fares no better. The Shared Services Law provides the general framework for

agreements between different local government entities, but provides an exemption

from that law when there is other enabling legislation. Specifically, N.J.S.A.

40A:65-4(a)(2) provides that agreements regarding shared services that are

otherwise regulated by statute, rule, or regulation are specifically excluded from . . .

40A:65-1 et [seq.].

Here, N.J.S.A. 18A:18A-11 is the statute that otherwise regulate[s] a

cooperative arrangement between a school board and its municipality. Pursuant to

that statute: The boards of education of two or more districts may provide jointly

by agreement for the provision and performance of goods and services for their

respective districts, or one or more boards of education may provide for such

provision or performance of goods or services by joint agreement with the governing

body of any municipality or county (emphasis added). An arrangement such asthat provided for by Subparagraph D(9), if accepted by the BOE, is completely

lawful under N.J.S.A. 18A:18A-11, and can be implemented in way that is much

more flexible than the Shared Services Law; the shared-service provisions of Title

18A do not contain an allocation-of-cost requirement that is analogous to N.J.S.A.

40A:65-7(a)(3). As such, the voters of Jackson Township may, if they wish, assume

the burdens of the BOEs legal representation. While Petitioners are certainly free

to disagree with that choice, it is not a violation of the applicable law, and as such,

they may not use it as a basis from stopping the adoption of Subparagraph D(9). In


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any event, the Shared Services Law and N.J.S.A. 18A:18A-12(a) both contemplate

that a resolutionnot an ordinancemay be necessary to iron out further details

and specifics of the agreement. The possibility that further resolutions may be

necessary or desirable to implement the will expressed in the Proposed Ordinance,

however, cannot be taken seriously as a bar to the Proposed Ordinance itself.

As for the argument about N.J.S.A. 40:69A-40 (regarding the powers of a

mayor to oversee and supervise municipal department heads), the undersigned

counsel, candidly, do not understand it. First, unless the mayor is herself an

attorney, RPC 2.1 and 5.4(c) limits the ability of a supervisory mayor to limit the

attorneys exercise of professional judgment. Thus, N.J.S.A. 40:69A-40 is not the

absolute rule Petitioners make it seem to be.

Furthermore, it is a matter of public record that the incumbent Director of

Law for Jackson Township is a member of a private law firm. See Jackson Twp.

Res. 002R-13 (Jan. 1, 2013). Presumably, this private law firm has other clients,including other government entities. Yet, there seems to be no problem with that

attorney being a Jackson Township department head, subject to the direction and

control of the mayor (Pet. Brf. at 13) while simultaneously serving a number of

other public and private clients, taking direction and control from those other

public and private clients at the same time. (Id. at 14). Evidently, this

arrangement is not objectionable to the Township. Thus, an analogous

arrangement the one contemplated by Subparagraph D(9), where the Director of

Law is a township employee, but also has another client (the BOE) is likewise not


39/39

prohibited under any principled or consistent reading of N.J.S.A. 40:69A-40. In

fact, the change of the relationship from contractual to that of employer-employee

may actually increase the mayors amount of oversight, not decrease it as

Petitioners contend.

In any event, no principled reading ofN.J.S.A. 40:69A-40 bars the people of

Jackson Township from offering the assistance that is inherent in the adoption of

Subparagraph D(9). As such, it should remain part of the Ordinance.

CONCLUSION

For the foregoing reasons, the Court should deny the Petitioners motion for

summary judgment, grant the Interested Parties motion for summary judgment,

dismiss the Complaint, and direct that any references to Section 3-87 in the

ordinance, question, and interpretive statement be modified to Section 3-89.

Respectfully submitted,

ZAZZALI, FAGELLA, NOWAK,KLEINBAUM & FRIEDMAN

By: ________________________________FLAVIO L. KOMUVES

NEW JERSEY APPLESEEDPUBLIC INTEREST LAW CENTER, INC.

By: ________________________________RENE STEINHAGEN

Dated: August 1, 2013

in re: jackson township initiative -- brief to trial court -- nj appleseed pilc

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