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Lehrhaupt v. Flynn

Decided: July 1, 1974.

MICHAEL LEHRHAUPT, INDIVIDUALLY AND AS CHAIRMAN OF THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, DOUGLAS H. REED, INDIVIDUALLY AND AS VICE CHAIRMAN OF THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, FRANCIS M. CLARK, INDIVIDUALLY AND AS SECRETARY OF THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, LOUIS LA PLACA, INDIVIDUALLY AND AS A MEMBER OF THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, GERALD C. KELLY, INDIVIDUALLY AND AS ATTORNEY FOR THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, LINDA CHORORUS, INDIVIDUALLY AND AS A CLASS IV MEMBER OF THE MADISON TOWNSHIP PLANNING BOARD, JEAN R. MCNIFF, INDIVIDUALLY AND AS A CLASS IV MEMBER OF THE MADISON TOWNSHIP PLANNING BOARD, AND RICHARD F. ZIPP, INDIVIDUALLY AND AS A CLASS IV MEMBER OF THE MADISON TOWNSHIP PLANNING BOARD, PLAINTIFFS,
v.
THE HONORABLE WILLIAM FLYNN, MAYOR, AND THE TOWNSHIP COUNCIL OF THE TOWNSHIP OF MADISON, DEFENDANTS



Furman, J.s.c.

Furman

[129 NJSuper Page 329] Madison Township enacted an ordinance mandating full financial disclosure by township officials, on April 1, 1974. Plaintiffs, members of the zoning and planning boards and the zoning board attorney, challenge its constitutional and statutory validity in this declaratory judgment action. The ordinance's implementation is stayed pending a judicial determination on motion and cross-motion for summary judgment. Municipal legislation may be upheld or struck down without submission of testimony or evidence, despite the presumption of its validity. N.J. Builders Ass'n v. Mayor, E. Brunswick Tp., 60 N.J. 222, 224 (1972); Summer v. Teaneck, 53 N.J. 548, 551 (1969); Moyant v. Paramus, 30 N.J. 528, 539 (1959);

Adams Newark Theatre Co. v. Newark, 22 N.J. 472, 474 (1956), aff'd 354 U.S. 931, 77 S. Ct. 1395, 1 L. Ed. 2d 1533 (1959).

The State Legislature has not specifically authorized municipal enactment of financial disclosure ordinances. The validity of the ordinance must therefore rest upon the general delegation of police power to municipalities in N.J.S.A. 40:48-2. Financial disclosure bills applicable to both state and local officials are pending before the State Legislature in its 1974 session (Assembly Bills 167, 178, 475; Senate Bill 309) in conformity with a swelling nationwide trend that elected officials, candidates for elective office and high appointed officials reveal publicly their financial assets and liabilities. Cal. Gen. Laws Ann. Tit. 9, ยง 1, adopted on initiative June 4, 1974; Fritz v. Gorton, 83 Wash. 2d 275, 517 P. 2d 911 (Sup. Ct. 1974); Stein v. Howlett, 52 Ill. 2d 570, 289 N.E. 2d 409 (Sup. Ct. 1972); Carmel-by-the-Sea v. Young, 2 Cal. 3d 259, 85 Cal. Rptr. 1, 466 P. 2d 225 (Sup. Ct. 1970).

Such financial disclosures have been referred to as purifying democracy (Emerson, The System of Freedom of Expression 634 (1970)) and akin to the public right to know (Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969); N.Y. Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)).

The ordinance under review is less an intrusion on the right of privacy than out-of-state-legislation on the subject approved in Stein and Fritz, supra, and disapproved in Carmel, supra. The financial disclosure reports only of the mayor and members of the township council become public records; those of the appointed officials to whom the ordinance applies*fn1 are kept confidential, except in judicial

proceedings brought by the appointing authority or the board of ethics to prosecute or enjoin violations of the ordinance. The chairman of the board of ethics reviews all financial disclosure reports and advises the mayor and council as to compliance and possible conflicts and irregularities. Penalties for false filing or nonfiling are a maximum 30 days in jail and $500 fine.

The ordinance's disclosure requirements are comprehensive not only as to the officeholder's cash, bank accounts, receivables, real property, securities, equity interests in proprietorships or partnerships and other assets and liabilities, but as to his spouse's and minor children's. The minimum value of cash, bank accounts, receivables, motor vehicles and liabilities to be reported is set at $1,000. Cash surrender value of life insurance policies, vested interests in pension plans and all furnishings and fixtures are specifically excluded.

Another major thrust of the ordinance, which is not challenged in this action, is to require disclosure of possible conflicts of interests other than through legal or beneficial ownership, that is, any employment or rendering of services for compensation for an individual, partnership or corporation regularly transacting business with the township, but not the amount of such compensation.

A succession of Supreme Court decisions has confirmed that the police power delegated to municipalities in N.J.S.A. 40:48-2 is coterminous with the police power of the State Legislature, unless there is a state preemption or the subject matter necessarily lends itself to general and uniform, rather than local, legislative control, even in the absence of state preemption. Inganamort v. Fort Lee, 62 N.J. 521, 536 (1973); N.J. Builders Ass'n, supra 60

N.J. at 226-227; Summer, supra 53 N.J. at 552; Moyant, supra 30 N.J. at 542; Fred v. Old Tappan Mayor & Council, 10 N.J. 515, 519 (1952). The municipal police power extends to legislation uncharted by prior state legislation on the subject ...


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