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When Asbury Park became the first New Jersey municipality to perform a marriage between two people of the same sex, the state rolled out a rarely seen tool of enforcement: It threatened to jail the wayward local officials. Attorney General Peter Harvey cautioned city officials that same-sex marriage is forbidden by New Jersey statute. His stern letter referenced a portion of the Marriage Act, N.J.S.A. 37:1-1 et seq., that subjects violators to a $500 fine and six months in jail. Under threat of criminal prosecution, Asbury Park officials quickly changed their tune, agreeing not to perform more same-sex marriages or issue same-sex marriage licenses pending the outcome of a court case. However rare it is for the state to enforce its power over municipalities by threatening local officials with jail, the Asbury Park case serves as a reminder that the potential for prosecution is there. Many statutes governing municipalities have provisions for criminal prosecution of officials who do not comply, says William Dressel, executive director of the state League of Municipalities. Those statutes include ones dealing with public records, contracts, ethics, the environment and fiscal matters. Another potent tool for carrying out state policy is the threat of revocation for the licensing that many municipal government workers are required to maintain. Municipal lawyers say open defiance of the sort Asbury Park exhibited is unusual, probably in recognition that the state holds almost all the cards. “Municipalities are creatures of the state, and that is generally the prevailing interpretation that has been used in New Jersey,” says Ernest Reock, a professor emeritus of political science at Rutgers University’s Edward J. Bloustein School of Planning and Public Policy. “Even though the state constitution has some language that says laws will be interpreted liberally in favor of local government, when you get down to it, the state has the upper hand and municipalities are in a weak position to oppose it,” he adds. Municipalities have been granted significant powers by the Legislature in areas like land use planning, says Reock, in part because many legislators also hold municipal offices. Sometimes the outer limits of municipal power can be unclear, but in cases where the attorney general chooses to assert his authority, as he did in Asbury Park, there’s not much the town can do, Reock says. New Jersey and most other states follow the doctrine that local governments can exercise no more authority than is permitted by state government, a concept known as Dillon’s Rule, says Kristina Hadinger, a municipal attorney at Mason, Griffin & Pierson in Princeton. That rule, enunciated in 1868 by Judge John Dillon of the Iowa Supreme Court, has generally overtaken the competing Cooley Doctrine, named for an 1872 ruling by Judge Thomas Cooley of the Michigan Supreme Court, which holds that states cannot limit the power of localities to govern themselves, Hadinger says. State authority over New Jersey municipal governments was affirmed by the U.S. Supreme Court in Trenton v. New Jersey, 262 U.S. 182 (1923). There, the City of Trenton had resisted paying state fees for water it drew from the Delaware River, but the Supreme Court found that the city was a creature of the state and therefore subject to state authority. More recently, the state Supreme Court has used Dillon’s Rule to find that municipal ordinances against loitering are superceded by the state criminal code, says Hadinger. That has caused frustration among some municipalities, since the state code does not address loitering, she says. In State v. Crawley, 90 N.J. 241 (1982), the Supreme Court invalidated a Newark antiloitering ordinance, finding that the lack of any comparable ban in the state code reflected a state policy not to penalize such conduct. Tribal Standoff The state was similarly quick to crack down on a wayward municipality in 1998 when, fearing concern of competition with Atlantic City, it ordered Wildwood to end negotiations with a Native American tribe that wanted to open a gambling casino. Unlike the Asbury Park controversy, the standoff in Wildwood never came to a head because the Native Americans decided to pull out of discussions and instead build a casino in Minnesota, says Jeffrey April of April, Maudsley & Goloff in Marmora, the tribe’s attorney. Joseph Marbach, chairman of the political science department at Seton Hall University, says the heavy news coverage of San Francisco Mayor Gavin Newsom’s decision to begin marrying gay couples prompted Harvey’s swift response in Asbury Park. “Ultimately it probably was appropriate, maybe a bit heavy-handed. I think the sense of the administration was, let’s contain this as quickly as we can,” Marbach says. Baher Azmy, who teaches constitutional law at Seton Hall University School of Law, calls Asbury Park’s sanctioning of gay marriage a classic act of civil disobedience. As such, the act was undertaken “like all constructive acts of disobedience, in order to create a conflict, and therefore highlight what the disobeyers believe is the immorality of the law they’re challenging. If that is [Asbury Park's] goal, this seems to be having the desired effect,” Azmy says. Last November, a state Superior Court judge ruled, in Lewis v. Harris, MER-L-15-03, that same-sex marriage is not permitted by New Jersey law. That ruling is being appealed. Asbury Park officials claimed that the Marriage Act is nevertheless open to interpretation because, while it forbids marrying one’s sibling, cousin, niece or nephew, among others, it makes no reference to same-sex couples. Deputy Municipal Clerk Dawn “Kiki” Tomek issued a marriage license to Louis Navarrete and Ric Best after consulting with city attorney Frederick Raffetto, an associate at Ansell, Zaro, Grimm & Aaron in Ocean Township. Asbury Park’s litigation counsel, James Aaron of Ansell Zaro, says the state’s firm stance is being taken seriously, since a criminal conviction could cost Tomek, Mayor James Bruno and City Clerk Stephen Kay their jobs. The attorney general has called off plans to prosecute Asbury Park officials in light of the city’s retreat, says Harvey spokesman Lee Moore. But Moore adds that the state is prepared to fight Asbury Park in court over the legal status of gay marriages. “In terms of this situation, the desired result has been achieved, which is the officials in Asbury Park have agreed to do what we asked them to do, which is to stop violating the law,” Moore said. Last Monday, the city filed a complaint in Monmouth County Superior Court asking for a declaratory judgment that the Marriage Act, N.J.S.A. 37:1-1 et seq., be interpreted to allow same-sex marriages. The city suit, which names the state and Harvey as defendants, also asks the court to validate the marriage of Best and Navarrete and to enjoin the state from prosecuting city officials who participated in granting that marriage. Asbury Park also said it would not expend municipal funds on its suit, and it established a legal defense fund to which the public was invited to contribute. Also on Monday, a conservative group filed suit in Monmouth County against Asbury Park, seeking to void the marriage of Best and Navarrete and to enjoin the city from performing other such marriages. The suit was brought on behalf of two Asbury Park residents by the American Center for Law and Justice of Virginia Beach, Va., a group founded by TV evangelist Pat Robertson.

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