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In re Referendum Petition to Repeal Ordinance 04-75

September 26, 2007

IN RE REFERENDUM PETITION TO REPEAL ORDINANCE 04-75.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 388 N.J. Super. 405 (2006).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether a referendum adopted by the Trenton City Counsil concerning the organization of its police department is subject to challenge by referendum under N.J.S.A. 40:69A-185.

On September 2, 2004, the Trenton City Council enacted Ordinance 04-75, which sets forth a restructuring plan for the City of Trenton's police department. The Ordinance provides that a police director shall head the department with the assistance of a chief of administrative services, outlines the police department's command hierarchy, enumerates the number of positions for each rank, and establishes the salary range for the chief of administrative services, among other things. At the time of Ordinance 04-75's passage, the police department's table of rankings included three deputy chiefs; Ordinance 04-75 eliminated these positions. Prior to its adoption, the police director advised the three deputy chiefs that they had the option of being laid off or accepting a demotion to the position of captain.

On September 21, 2004, Trenton's City Clerk informed the City Council that his office had accepted a referendum petition seeking to repeal Ordinance 04-75. On October 7, 2004, the City Clerk certified that the referendum petition complied with the statutory requirements and that he would order the ordinance placed on the ballot. Thereafter, Mayor Palmer and the Council (collectively, the "City") obtained an order to show cause and filed a verified complaint in lieu of prerogative writ, seeking a judgment that the referendum petition was void because Ordinance 04-75 was not subject to recall under the referendum statutes set forth in the Faulkner Act.

The trial court, in a written opinion, determined that the part of Ordinance 04-75 that organized the chain of command of the police department, designated the number of officers assigned to each rank, and eliminated the deputy chief positions was "an administrative, not legislative decision." The trial court relied on a line of cases, beginning with Cupowski v. City of Jersey City, 101 N.J. Super. 15, 23 (Law Div.), aff'd o.b., 103 N.J. Super. 217 (App. Div.), certif. denied, The opinion of the court was delivered by: Justice Albin

Argued May 1, 2007

The Legislature has conferred on the voters of Faulkner Act municipalities,*fn1 such as Trenton, "the power of referendum," the right to test a challenged ordinance in the crucible of the democratic process. See N.J.S.A. 40:69A-185. When a referendum petition is properly filed, the voters have the final say in approving or rejecting an ordinance at the ballot box.

In this case, the Trenton City Council enacted Ordinance 04-75, which established a new organizational table for the police department and set a salary range for the chief of administrative services. A Trenton citizens group filed a referendum petition that required the ordinance to be submitted for ballot approval. The City Council and the Mayor of Trenton then filed a complaint seeking a declaratory judgment that the ordinance was not subject to referendum pursuant to N.J.S.A. 40:69A-185.

Relying on case law that holds that only "legislative" ordinances, as opposed to "administrative" ordinances, are subject to referendum, the trial court concluded that the part of the ordinance restructuring the police department was administrative in nature and therefore not subject to the referendum statute. The Appellate Division reversed, finding it to be legislative and subject to voter approval in a referendum. We affirm, not because Trenton Ordinance 04-75 is a legislative as opposed to administrative ordinance, but because N.J.S.A. 40:69A-185 states in clear, plain language that "any ordinance passed by the council," challenged by a properly filed referendum petition, must be approved or rejected at the polls. The judicially-created legislative/administrative distinction is not supported by the statute, its legislative history, or its place in the overall statutory scheme. Only the Legislature can make exceptions to the statutory mandate that "any ordinance" is subject to referendum. Because there is no applicable statutory exception, Ordinance 04-75 is subject to the referendum process and must be placed on the ballot for voter review.

I.

A.

On September 2, 2004, the Trenton City Council enacted Ordinance 04-75, which sets forth a restructuring plan for the City of Trenton's police department. Ordinance 04-75 provides that a police director shall head the police department with the assistance of a chief of administrative services. The ordinance also outlines the police department's command hierarchy and enumerates the number of positions for each rank: 8 to 13 captains, 25 to 30 lieutenants, 35 to 45 sergeants, and 270 to 290 patrol officers. Additionally, the ordinance establishes the salary range for the chief of administrative services, provides that both he and the police director are eligible for annual stipends at the mayor's discretion, and authorizes the police director to structure the police department in accordance with the organizational table.

Prior to the enactment of Ordinance 04-75, a 1999 ordinance, approved by the voters in a referendum, eliminated the position of chief of police and replaced it with the new office of police director. Trenton, N.J., Ordinance 99-52 (June 22, 1999). At the time of Ordinance 04-75's passage, the police department's table of rankings consisted of 3 deputy chiefs, 10 captains, 25 lieutenants, 24 sergeants, and an indefinite number of police officers. Ordinance 04-75, among other things, eliminated the position of deputy chief, then held by three career officers, and increased the numerical range of positions for each rank, including by three the number of captain positions. Before the ordinance took effect, the police director advised the three deputy chiefs that they had the option of being laid off or accepting a demotion to the position of captain.

On September 21, 2004, Trenton's City Clerk informed the City Council that his office had accepted a referendum petition seeking to repeal Ordinance 04-75. On October 7, 2004, the City Clerk certified that the referendum petition complied with the statutory requirements of N.J.S.A. 40:69A-185 to -191 and that he would order that the ordinance be placed on the ballot unless the City Council repealed it within twenty days.*fn2

Thereafter, plaintiffs Mayor Douglas Palmer and the City Council (collectively the "City") obtained an order to show cause and filed a verified complaint in lieu of prerogative writ, seeking a declaratory judgment that the referendum petition was void because it violated N.J.S.A. 40:69-185 to -191. The complaint named as indispensable parties the City Clerk, as well as Russell Derricott, Howard Allaire, Stephanie J. Bradberry, Earl J. Hill, and Anthony Pasqua (collectively the "Committee of Petitioners"), who were believed to be the organizers of the citizens group behind the referendum drive. The City claimed that Ordinance 04-75 was not "subject to recall under the referendum statutes set forth in the Faulkner Act." The Committee of Petitioners, in its answer, disagreed.

B.

The trial court, in a written opinion, determined that the part of Ordinance 04-75 that organized the chain of command of the police department, designated the numerical range of officers to be assigned to each rank, and eliminated the deputy chief position was "an administrative, not legislative decision and comport[ed] with the statutory authority set forth in N.J.S.A. 40A:14-118," and therefore was not subject to referendum under N.J.S.A. 40:69A-185. Relying on a line of cases, beginning with Cuprowski v. City of Jersey City, 101 N.J. Super. 15, 23 (Law Div.), aff'd o.b., 103 N.J. Super. 217 (App. Div.), certif. denied, 53 N.J. 80 (1968), which held that only legislative ordinances are subject to referendum, the court concluded that an ordinance dictating the organizational structure of a police department is administrative in nature and thus exempt from a referendum challenge.

On the other hand, the court found that the part of the ordinance increasing the salary range of the chief of administrative services had to be submitted to the voters for ratification pursuant to N.J.S.A. 40A:9-165. Under that statute, an increase in salary of a managerial municipal employee, fixed by ordinance, must be submitted for voter approval if a petition containing the signatures of at least five percent of the municipality's registered voters protesting the ordinance is properly filed.

The Committee of Petitioners then appealed.

C.

Reversing the trial court, the Appellate Division concluded that an ordinance establishing a police department's table of organization and the salary range of its officers is subject to a referendum challenge. In re Referendum Petition to Repeal Ordinance 04-75, 388 N.J. Super. 405, 409, 415 (App. Div. 2006). The panel observed that the Legislature has conferred on the voters of a Faulkner Act municipality, like Trenton, the authority to "'approve or reject at the polls . . . any ordinance passed by the council, against which a referendum petition has been filed.'" Id. at 413 (alteration in original) (quoting N.J.S.A. 40:69A-185). The panel, however, noted that the statutory language "any ordinance" has been construed as meaning not "all ordinances." Ibid. It adhered to the legislative/administrative dichotomy first enunciated in Cuprowski, which stated that the Legislature intended the right of referendum to apply only "'to ordinances of a legislative nature'" and not to "'resolutions or ordinances of an executive or administrative nature.'" Ibid. (quoting Cuprowski, supra, 101 N.J. Super. at 23).

The panel in this case observed that the difficulty in characterizing an ordinance as either legislative or administrative had created an "apparent conflict" between Appellate Division panels. Id. at 413-14. In seemingly conflicting cases, both citing Cuprowski, the panel in D'Ercole v. Mayor and Council of Norwood, 198 N.J. Super. 531 (App. Div. 1984), held that an ordinance authorizing a municipality to lease a firehouse for twenty years was an administrative act not subject to referendum, whereas the panel in Menendez v. City of Union City, 211 N.J. Super. 169 (App. Div. 1986), determined that an ordinance increasing the number of fire captains and creating a new fire protection subcode official was a legislative act subject to referendum. In re Referendum Petition, supra, 388 N.J. Super. at 413-14. The panel here sided with the Menendez approach, maintaining that the "'right of referendum'" should be liberally construed to further "'the legislative policy of encouraging citizen interest and participation in local government.'" Id. at 414-15 (quoting Menendez, supra, 211 N.J. Super. at 172). Indeed, for the purpose of bringing "some predictability" in classifying ...


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