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An Essex County Superior Court judge has dismissed a suit seeking a public referendum on a Newark policy that limits public comment at city council meetings. The plaintiffs, all Newark residents, had sought the referendum because the council rejected their proposed ordinance on public comment and instead enacted a more restrictive one. Judge Harry Margolis ruled last Wednesday that under the Open Public Meetings Act, N.J.S.A. 10:4-12(a), the City Council has the right to “permit, prohibit or regulate” public participation at its meetings. An act that is “purely executive or administrative in character,” such as setting public comment parameters at council meetings, is not subject to referendum. “The Council is permitted by statute to determine its own rules of procedure, provided it is not inconsistent with an ordinance or statute,” he wrote, adding that nothing the residents were seeking through the ordinance directly affects substantive policy concerns. The plaintiffs’ attorney, Renee Steinhagen of the Public Interest Law Center at Seton Hall Law School, says Margolis’ decision will not be appealed. The seven residents sued City Clerk Robert Marasco after he refused on Dec. 21 to accept their petition for an ordinance requiring a public-speaking segment at each meeting, the presence of at least five members at the twice-monthly meetings, televised council meetings and permission for residents to speak on any subject by giving prior notice. The council rejected the proposed ordinance and on March 1 adopted its own set of rules, allowing public comment at regular meetings only when an ordinance is on second reading. The rules do not allow the sessions to be televised. In addition, council members are permitted to hold regular neighborhood meetings at which residents may address at least three of the nine members. Residents must sign up five days in advance of the meetings, although the agendas are usually not publicly available until two days before. Margolis found that the citizens had no basis to dictate such matters themselves by presenting an ordinance for a public vote. “The inescapable conclusion is that the ordinance enacted by the Council merely sets parameters for the public’s right to address the City Council,” Margolis wrote. The plaintiffs contended in their brief that limiting the opportunity to speak to an ordinance’s second reading was ineffective because council members already had made up their minds about how they would vote. Representing the city clerk, Richard Regan, an associate with Teaneck’s DeCotiis, FitzPatrick, Gluck, Hayden & Cole, notes that state law does not provide for a right to speak at meetings. “The bottom line is that the judge’s decision reflects that the city clerk acted properly in not placing the item on the ballot,” Regan says. Steinhagen, the plaintiffs’ attorney, says the city’s practice of limiting speech should be considered a matter of policy in which residents can have a voice. “We were trying to make a policy distinction to say that the right to speak at public meetings is a legislative decision,” Steinhagen says. “He [Judge Margolis] viewed it as merely tinkering with the time and place.” However, the city’s attorney, Salvatore Perillo, a partner with Peskie, Nehmad & Perillo in Atlantic City, says that the city is not stifling public speech. “The courts have indicated there are certain subjects which are inappropriate for initiative,” Perillo says. “In New Jersey, the Legislature has spoken and has indicated that how a government runs its meetings is its prerogative.”

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