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Charles Carter Morgan, Member, West Windsor Township Council v. Shing-Fu Hsueh

December 2, 2011

CHARLES CARTER MORGAN, MEMBER, WEST WINDSOR TOWNSHIP COUNCIL, PLAINTIFF-APPELLANT,
v.
SHING-FU HSUEH, MAYOR, WEST WINDSOR TOWNSHIP, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-200-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 13, 2011

Before Judges Cuff, Waugh, and St. John.

The Township of West Windsor (the Township) has adopted the Mayor-Council Plan of Government pursuant to Article 3 of Chapter 69A of the Optional Municipal Charter Law, N.J.S.A. 40:69A-31 to -48, also known as the Faulkner Act. Plaintiff Charles Carter Morgan is an elected member of the Township Council; defendant Shing-Fu Hsueh is the elected Mayor of the Township. Plaintiff filed a complaint seeking a declaratory judgment regarding the manner in which, and when, the Mayor is required to respond to a request for information posed to the Mayor by a member of the Council. Holding that the matter was moot, the judge granted defendant's motion for summary judgment and dismissed the complaint. The judge also denied plaintiff's motion for reconsideration. Plaintiff appeals both orders; we affirm.

As discussed in a treatise on local government in New Jersey, the form of government adopted by the municipality is important because it informs the distribution of power among the legislative, executive, and administrative officers of the municipality. 34 New Jersey Practice, Local Government Law § 5.1, at 82 (Michael A. Pane, Jr.) (4th ed. 2007). Under modern forms of governmental organization, such as the Mayor-Council form of government in the Township, administrative and executive responsibility usually rests with an elected mayor and legislative authority rests with an elected council. Id. at § 5.1 at 83-84.

The Mayor-Council plan of government is governed by N.J.S.A. 40:69A-31 to -48. Article 3 recognizes the principle of separation of powers and distributes the executive and legislative authority between the mayor and the council. N.J.S.A. 40:69A-32b. To that end, the mayor and administrative officers are assigned various responsibilities, including preparation and submission of a budget and presentation of the budget to the council, N.J.S.A. 40:69A-40e, for consideration and adoption by the council, N.J.S.A. 40:69A-36. The council exercises the legislative power of the municipality, N.J.S.A. 40:69A-36, and it also has broad authority to investigate almost any matter within the scope of its municipal legislative authority, N.J.S.A. 40:69A-36c. In addition, an individual council member may request information from the mayor regarding any aspect of government of the municipality. N.J.S.A. 40:69A-37.1. This statute, which is at the heart of the present appeal, provides that "[a]ny council member may, at any time, require a report on any aspect of the government of the municipality by making a written request to the mayor."*fn1 Ibid.

In an October 27, 2009 email, plaintiff submitted a request to defendant for information about the upcoming budget. He wrote as follows:

Pursuant to Section 4-12C of the Township Code, this is my written request requiring that you provide a report regarding the alternative submittals to be presented at the November 4 meetings as set forth in the Notice attached to the email appended below.

Specifically, this request requires a report whether you will receive zero-based budget submittals, as well as the alternative scenarios discussed at the October 21 Council meeting that should accompany a zero-based budget submittal, during all of the meetings listed in that Notice.

In the event that no alternatives will be presented at that time, this request requires that your report list the zero-based and other budget alternatives that will accompany your recommended budget for 2010 when you submit it to Council.

Your written report should be submitted on or before November 4, 2009 so that it can be taken into account during the discussion of the proposed zero-based budget policy scheduled for the November 9 Council meeting.

Alleging that he did not receive any response to this request, plaintiff filed a complaint on January 21, 2010, in which he sought a declaratory judgment that defendant's silence violated N.J.S.A. 40:69A-37.1 and Section 4-12 of the Township Code. He also sought an order requiring a response to plaintiff's request from defendant.

Defendant responded that he addressed plaintiff's concerns at several Council meetings after plaintiff submitted his October 27, 2009 request, but plaintiff did not attend some of those meetings. Then, on February 17, 2010, the Business Administrator responded to plaintiff's October 27, ...


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