DDS No. 46-1-4776

July 31, 2014 (Date Decided)

Judge Albin

For appellants and cross-respondents: Renée W. Steinhagen and Flavio L. Komuves (New Jersey Appleseed Public Interest Law Center, Inc. and Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys).

For respondents and cross-appellants: Victor A. Afanador (Lite DePalma Greenberg, attorneys; Mr. Afanador and Jeffrey A. Shooman, on the briefs).

For amicus curiae American Civil Liberties Union of New Jersey: Lawrence S. Lustberg (Gibbons, attorneys).

For amici curiae New Jersey State League of Municipalities and New Jersey Institution of Local Government Attorneys: Edward W. Purcell, Associate Counsel, (William J. Kearns, Jr., General Counsel, attorney).

The court addresses two issues: whether the Clerk of the City of Hoboken violated the referendum provisions of the Faulkner Act by refusing to file a petition and, if so, whether the city clerk deprived plaintiffs of a substantive statutory right protected by the New Jersey Civil Rights Act, thus entitling them to attorney fees.

Hoboken is a Faulkner Act municipality and its citizens are empowered to challenge an ordinance in a referendum, provided the challengers file with the city clerk a petition containing signatures of qualified voters numbering at least fifteen percent of the votes cast in the last election of members of the General Assembly.

The city clerk refused to accept for filing a petition for referendum on the ground that the petition did not have a sufficient number of qualifying signatures. Members of a committee of petitioners brought an action in lieu of prerogative writ to have the challenged ordinance put on the ballot. They also brought suit under the New Jersey Civil Rights Act for a violation of their statutory right of referendum.

Ultimately, the trial court granted the committee members the relief they sought, placing the ordinance before the voters and awarding them, as the prevailing party, attorney’s fees for the deprivation of a substantive right protected by the Civil Rights Act.

The Appellate Division affirmed all but the trial court’s finding of a civil rights violation. The Appellate Division determined that the committee members did not suffer a deprivation of a right because the court provided the ultimate remedy — the referendum. Accordingly, the award of attorney fees was vacated.

The Faulkner Act confers a substantive right of referendum protected by the New Jersey Civil Rights Act. The city clerk violated the right of referendum guaranteed by the Faulkner Act. Further, the violation of that right deprived the Committee members—and all of the city’s citizens—of a substantive right protected by the Civil Rights Act. The refusal of the city clerk to accept the filing of the referendum petition constituted the deprivation of a substantive right. The vindication of that right under the Civil Rights Act entitled the committee members to an award of attorney fees.

Justice Patterson, joined by Justice LaVecchia, concurred in part and dissented in part.