On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-1085-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Sabatino.
Rosemary Adams, the City Clerk of Atlantic City and Atlantic City (collectively "the City"), appeal from the July 13, 2006 order, granting summary judgment in an Action in Lieu of Prerogative Writs in favor of Iris Hernandez-Turner and Jerry Hannan (plaintiffs). We affirm substantially for the same reasons expressed by Judge Valerie H. Armstrong in her July 13, 2006 oral and April 20, 2006 written decisions.
These are the salient facts. Plaintiffs circulated a petition objecting to the recent passage of two municipal ordinances (Ordinances 112 and 113 of 2006) and seeking a ballot question on both ordinances. Ordinance 112 is a general ordinance, providing for a full-time City Council President and setting the hours required for that position. Ordinance 113 is a salary ordinance, providing for pay raises for the Council President, the Business Administrator, the Solicitor and various other municipal employees and Council members.
The petition, which was signed by 1,526 persons, was sent to the City Clerk's office. Adams rejected the petition for filing and sent a letter detailing the following insufficiencies:
In the third paragraph of the petition, your petition states that it is a "citizens' ordinance." Pursuant to N.J.S.A. 40:69A-186, "initiative petition papers shall contain the full text of the proposed ordinance." You have failed to attach any proposed ordinance, as required.
Further, your petition relating to various city ordinances contains 1,526 signatures. By law, specifically N.J.S.A. 40:69A-185, if your petition is a referendum petition, it requires 9,670 registered voters' signatures which represents 15% of the total votes cast at the last election wherein the General Assembly was elected.
Additionally, your petition contains several other procedural deficiencies, including but not limited to placing two ordinances on one petition. Specifically, you are seeking to repeal Ordinance #112 as it would establish a yearly salary for Council President from $30,000 to $60,000. Ordinance #112 does not address the salary of Council President. You are also seeking the repeal of "Ordinance #113 of 2006, which intends to raise the salaries of all members of City Council by more than 26% with additional salary increases scheduled in the years 2007, 2008 & 2009 and would increase the salaries of all Department Directors to more than $120,000 per year with additional increases in years 2007, 2008 & 2009". Ordinance 113 does not seek such actions with regard to all Department Directors and does not address the years you have specified. It is impossible for City Council to repeal the ordinances that you have described in your petition, as the petition does not reflect ordinances that are currently in existence.
Pursuant to N.J.S.A. 40:69A-188, you may amend your petitions to supplement the signatures with the appropriate number of signatures and may amend the other procedural defects as specified. Any such amendment to your petitions must be filed with the City Clerk's Office within 10 days of your receipt of this notification. No amendments will be accepted after that time. Please be guided accordingly.
Dissatisfied with this response, plaintiffs filed the Action in Lieu of Prerogative Writs, alleging that because their petition was actually a salary challenge, it should have been reviewed according to the less stringent requirements of N.J.S.A. 40A:9-165, rather than the more rigorous standards of the general referendum statute, N.J.S.A. 40:69A-185. The City answered alleging that Ordinance 112 was not a salary ordinance within the purview of N.J.S.A. 40A:9-165 and moved to dismiss the action on the grounds that plaintiffs had failed to exhaust administrative remedies. Judge Armstrong denied the motion to dismiss. She issued a comprehensive written opinion on April 20, 2006. The City moved for reconsideration. Judge Armstrong denied reconsideration.
Plaintiffs moved for partial summary judgment and to proceed in a summary manner. By order dated July 13, 2006, the judge: (1) declared that the petition was valid pursuant to N.J.S.A. 40A:9-165; (2) ordered Adams to accept the petition for filing; (3) ordered that Ordinance 113 of 2006 "shall remain inoperative unless and until a proposition for the ratification thereof shall be adopted at an election by a majority of the voters voting on said proposition at the next General Election of November 7, 2006"; and (4) awarded $250 in costs to plaintiffs. The City appealed.
During the pendency of the appeal, the City Council passed a new ordinance that repealed Ordinance 112 and partially repealed Ordinance 113. Although no formal motion was filed, the City agreed with plaintiffs' counsel to await our decision on appeal before placing the issue on the ballot. However, plaintiffs replaced their counsel and moved to enforce litigants rights to place the question on the November 2006 General Election Ballot. The City moved before Judge Armstrong unsuccessfully for a stay of the July 13, 2006 order. The City sought a stay from us on an emergent basis. We ...