Yanoff, J.c.c., Temporarily Assigned.
[144 NJSuper Page 60] The history of the inception of this litigation is contained in D'Ascensio v. Benjamin , 137 N.J. Super. 155 (Ch. 1975) aff'd with modification 142 N.J. Super. 52 (App. Div. 1976). A notice of petition and petition for certification have been filed by the plaintiff-appellant in that case and are now pending before the Supreme Court. However, a motion for stay pending decision by the Supreme Court was denied by the
Appellate Division. Neither side has suggested that pendency of the petition for certification affects this case.
The essence of the decisions of Judge Kimmelman and the Appellate Division in the D'Ascensio case is that an ordinance proposed by "initiative" pursuant to N.J.S.A. 40:69A-184 et seq. ("Initiative and Referendum") was supported by sufficient signatures to require submission to the Newark Municipal Council.
At oral argument the parties stipulated facts which need not be recited. Suffice it that from them I find as facts that on December 10, 1975, the corporation counsel of the city advised the city council that in his opinion the proposed ordinance was illegal on its face, and that on December 17, 1975 it was submitted to the council and tabled. At that time it was the opinion of the corporation counsel that the matter could not be brought to court because the issue of illegality of the ordinance could not be raised until the proposal had been put before the voters. I also find as a fact that the council was throughout advised by the corporation counsel of the status of the litigation, including stays, steps taken by way of appeal, and petition for certification.
Approximately in July 1976 the corporation counsel's office found the case of McCrink v. West Orange , 85 N.J. Super. 86 (App. Div. 1964), and then changed its opinion and decided that an action could be instituted before the initiative ordinance had been submitted to the electorate.
Thereafter, on August 3, 1976 the office of the corporation counsel wrote to the city clerk:
The City's application for a stay pending hearing on the petition for certification in the above matter was denied by the Appellate Division. As a result, you are to submit the proposed ordinance to the Municipal Council for their consideration as soon as possible.
At the same time the city clerk read to the municipal council a letter from the corporation counsel, dated December 10, 1975, in which he said in substance that the proposed ordinance "cannot be approved as to form and legality."
The minutes of the meeting of the city council of that date contain the following:
A motion directing the Corporation Counsel to take an appeal from the decision by the Appellate Division of the Superior Court in the matter of the Police Review Board, was made by the Council of the Whole and declared adopted by President Harris by the following votes: * * *.
The corporation counsel interpreted this as a direction to litigate the propriety of further proceedings to enact the proposed ordinance, and on August 10, 1976 he filed a complaint for a declaratory judgment that the proposed ordinance was "null and void" and enjoining presentation of the ordinance to the Municipal Council of the City of Newark and placing it on the ballot at the next general election. I signed an order to show cause returnable on August 23, 1976.
N.J.S.A. 40:69A-191 provides that if the municipal council should fail within 60 days of the submission of a certified petition by the municipal clerk to act on an ordinance proposed by initiative, the ordinance shall be submitted to the voters. It was, therefore, open to the municipal council on the date of submission to it of the proposed ordinance by the city clerk to refrain from acting thereon for a period of 60 days, or until October 4, 1976, a date perilously close to the general election on November 2. From the standpoint of time, therefore, it seems desirable to have the matter submitted in sufficient time prior to the general election to permit a thorough resolution of all legal issues.
Among the points made by defendants at the outset was that the matter should not have been submitted under R. 4:67-1(a) as a summary action. However, at oral argument on August 23, 1976, after stipulating the facts already mentioned, both parties agreed that the matter should be heard as a summary proceeding under the cited rule. Both agreed, also, that the matter was ripe for decision on the papers submitted, as if on motion for summary judgment.
The proposed ordinance reads as follows:
Be it enacted by the people of the City of Newark, New Jersey pursuant to the authority provided in N.J.S.A. 40:69A-184 an Ordinance establishing a Civilian Complaint Review Board and setting forth its functions.
Section 1. It is the public policy of the City of Newark to provide a viable and effective remedy to any of its citizens who present claims of police misconduct involving the use of unnecessary or excessive force and to eliminate all forms of illegal police conduct as hereafter described.
Section 2. In order to carry out this public policy there is hereby established an autonomous Civilian Complaint Review Board.
Section 3. The Civilian Complaint Review Board shall have jurisdiction over all complaints received from citizens of the City of Newark alleging police misconduct involving police corruption, the use of unnecessary or excessive force, abuse of authority, discourteous or insulting language or ethnic discrimination.
Section 4. Upon the receipt of a sworn complaint, the Civilian Complaint Review Board shall authorize the conduct of an investigation to determine whether there is any substantial disagreement as to the facts alleged. Within thirty days (30), the investigators shall report to the Board whether or not conciliation of the dispute is feasible. If the Board determines that conciliation is feasible, the Board shall order that the parties attempt to informally resolve the complaint. The Board shall determine, within 20 days of any attempt at conciliation, whether conciliation attempts have been successful. In the event the Board determines that conciliation has not been successful, the Board shall, within 20 days order a formal hearing to be conducted. Any police ...