Redd v. Bowman, A-5731-11T4; Appellate Division; opinion by Messano, P.J.A.D.; decided and approved for publication October 29, 2013. Before Judges Messano, Lihotz and Ostrer. On appeal from the Law Division, Camden County, L-2019-12. DDS No. 21-2-1778 [30 pp.]

The government of the city of Camden operates pursuant the Faulkner Act. This appeal involves an initiative petition and proposed ordinance filed with the Camden city clerk by defendants Vance Bowman, Larry Gilliams, Eulisis Delgado, Mary Cortes and Robert Davis, collectively known as the Committee of Petitioners. The ordinance was proposed in response to Camden’s decision to disband its municipal police department and join a newly formed county police force. The proposed initiative sought to maintain the city’s police department and prohibit the city from joining the county police department.

Plaintiffs, Mayor Dana Redd and City Council president Francisco Moran, filed a complaint seeking to declare the petition-initiated ordinance invalid before it was submitted to the city council or placed on any ballot.

The Law Division judge granted plaintiffs’ requested relief, concluding that the proposed ordinance created an undue restraint on the future exercise of municipal legislative power and was invalid on its face. The judge specifically refrained from considering whether the proposed ordinance was pre-empted by the Municipal Rehabilitation and Economic Recovery Act (MRERA), and the Special Municipal Aid Act (SMAA). The committee filed this appeal.

Held: The proposed initiative ordinance, which sought to maintain Camden’s police department and prohibit the city from joining the county police department, did not create an undue restraint on the future exercise of municipal legislative power. However, the matter is remanded to the Law Division for further consideration of whether the statutory schemes at issue have pre-empted its consideration by the voters.

The committee claims that the proposed ordinance was a valid exercise of the initiative powers granted by the Faulkner Act, and the judge erred by concluding the proposed ordinance impermissibly restrained future municipal legislation. The committee further asserts that the initiative ordinance was not prohibited by N.J.S.A. 40A:14-118, which grants every municipality the right to create and establish a police force nor pre-empted by the MRERA and the SMAA, statutory regimes that impose state oversight on Camden’s finances.

In declaring the initiative ordinance invalid in this case, the Law Division judge did not rely on either the express language of the Faulkner Act or some other statute, or the comprehensive state supervision, regulation or occupation of the field. Instead, the judge concluded the ordinance was invalid because it “create[d] an undue restraint on the future exercise of municipal legislative power.” No governing body, without specific legislative permission, may divest its successors of legislative power. This restriction on the legislative power of voters in a Faulker Act municipality arose from a basic tenet of municipal corporate law, not the express language of the Faulkner Act or any other statute. An exception to the general rule exists when the Legislature specifically permits present legislative bodies to restrict the legislative power of their successors.

Through passage of an amendment, the Legislature has given the voters in a Faulkner Act municipality the power to restrict the legislative actions of the present governing body and its successor for a period of three years, which restriction may only be removed if the governing body returns the issue to the people for a vote. In the absence of an unequivocal legislative expression to the contrary, citizens in a Faulkner Act municipality are empowered to protest any ordinance under the act. The burden is on the party seeking to defeat the Faulkner Act to clearly establish the existence of a contrary legislative intent. It is the function of the Legislature, not the courts, to determine how much direct democracy through referendum should be conferred on the voters of a municipality. There is no reason to treat the Faulkner Act’s initiative process any differently.

The appellate panel therefore reverses those provisions of the Law Division’s order that declared the proposed ordinance to be invalid and restrained its further consideration by the council or the voters because it improperly restricted future municipal legislative action.

As to the pre-emption issue, plaintiffs argue that, although the proposed initiative ordinance dealt solely with the police function, it impacted Camden’s budget and finances, which are uniquely subject to additional statutory regimes, including the MRERA and the SMAA. The statutory scheme seemingly demonstrates the Legislature’s decision to fully occupy the field of municipal finance in Camden. The proposed initiative ordinance was not a budget ordinance, yet elimination of the police force, and Camden’s membership in, and support of, a County police force was an integral part of the city’s overall financial strategy. On its face, the statutory scheme does not mandate that Camden enter into a particular regionalized or shared service plan. If it did, the initiative ordinance would be barred. Yet, certain provisions of the MRERA impliedly leave little room for other voices to be heard, including, perhaps, the voices of the voters of Camden.

The record inadequately explains if adoption of the proposed initiative ordinance creates an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature. Therefore, the appellate panel remands the matter to the Law Division for further consideration of whether the various statutory schemes at issue have pre-empted consideration by the voters of the proposed initiative ordinance in this case.

For appellants — Anthony Valenti (Caplan, Valenti & Murray; Valenti and Karen M. Murray on the brief). For respondents: Redd — John C. Eastlack Jr. (Weir & Partners); Moran — Jay J. Blumberg.