Superior Court of New Jersey, Chancery Division, Essex
Decided: April 13, 2017
Stephen J. Edelstein for plaintiff (Schwartz, Simon,
Edelstein & Celso, LLC, attorneys).
S. Pennington and Gracia R. Montilus for defendant, City of
Orange Township (Dan S. Smith, attorney).
L. Tarver, Jr. for defendant, City Council of the City of
Orange Township (Dan S. Smith, attorney).
C. Stephens, Deputy Attorney General, for defendant, Essex
County Board of Elections (Christopher S. Porrino, Attorney
Karteron, Director, Rutgers University Constitutional Rights
Clinic, for amicus curiae S. George Reed.
R. VENA, J.S.C.
matter comes before the court on the City of Orange Township
Board of Education's ("plaintiff's")
verified complaint and order to show cause to restrain the
Essex County Board of Elections ("County Board")
from certifying the results of the City of Orange
Township's March 28, 2017, special school board election
and to restrain the City Council of the City of Orange
Township ("City Council") from taking action in
furtherance of the November 8, 2016, referendum, which
converted the City of Orange Township School District from a
Type I school district, one in which the school board members
are appointed by the mayor of the City of Orange Township, to
a Type II school district, one in which the school board
members are elected by the residents of the City of Orange
defendants in this matter are the City Council, the City of
Orange Township ("City"), and the County Board.
When appropriate, the court will refer to these parties
collectively as "defendants."
the Rutgers University Constitutional Law Clinic, under the
supervision of Alexis Karteron, and authorized to practice
law in New Jersey pursuant to Rule 1:21-3(b), has
filed a motion for leave to appear as amicus curiae and to
represent S. George Reed, a concerned citizen and
long-established City resident. The Clinic has filed an
amicus brief to participate in oral argument on April 13,
2017, to further emphasize its position that the change from
an appointed school board to an elected school board should
genesis of this matter can be traced to July 6, 2016, the
date which the City Council adopted a resolution which called
for a referendum at its next general election, scheduled for
November 8, 2016, for the City to change from an appointed
school board, a Type I school district, to an elected school
board, a Type II school district. The first school board
election was to be held during the November 2017 general
argues that the City's municipal public question and
interpretive statement-both of which appeared on the
City's November 8, 2016, ballot-were misleading and
contrary to N.J.S.A. 19:3-6 in that they did not adequately
inform the voters of what it meant to change from a Type I
school district to a Type II school district. Defendants
counter that the public question and interpretive statement
both fully complied with N.J.S.A. 19:3-6, as both
satisfactorily informed the voters of the true purpose of the
matter being voted upon so as to make the voters generally
aware of what they were voting for.
February 3, 2017, plaintiff filed a petition for emergent
relief before the Commissioner of Education for essentially
the same relief that it seeks from this court.
Plaintiff's petition was sent by the Commissioner to the
Office of Administrative Law and assigned to the Honorable
Michael Antoniewicz, an Administrative Law Judge, who, on
February 28, 2017, determined that the Superior Court is the
proper forum. With the special school election set for March
14, 2017, all parties were summoned to this court on March
13, 2017. It was on that date that the court entered an order
postponing the special school election, as a result of an
impending and significant winter storm, to March 28, 2017.
that election took place, per the court's order of March
15, 2017, the County Board was enjoined from certifying the
results of said election until further notice from the court.
This enjoinment was ordered with the consent of all parties.
The March 15, 2017, order also included a provision wherein
plaintiff was ordered to amend its verified complaint to
include the City as a defendant, which plaintiff did.
6, 2016, the City Council passed resolution 125-2016, which
called for a referendum at the next general election,
scheduled for November 8, 2016, for the City to change from
an appointed school board, a Type I school district, to an
elected school board, a Type II school district, pursuant to
school districts have a Board of School Estimate pursuant to
N.J.S.A. 18A:22-1, a group in charge of budgets and
spending pursuant to N.J.S.A. 18A:22-7. Generally, these
boards operate in the following manner: when issues of
spending arise, or when necessary to bond for capital
projects, the Board of School Estimate passes a resolution
and the municipality then passes a bond ordinance. Type II
school districts do not have a Board of School Estimate. In
Type II school districts, bonding for capital projects must
be approved by public referendum.
accordance with resolution 125-2016, on November 8, 2016, the
referendum appeared on the ballot. The municipal public
question stated as follows: "Shall the Board of
Education of the City of Orange Township be changed from a
board that is appointed by the Mayor, to a board that is
elected by the residents of Orange, effective immediately,
with the first school board election to be held during the
November 2017 general election[?]" The accompanying
interpretive statement read: "Presently the Mayor
appoints members to serve on the City's Board of
Education. If changed to a board of elected members, the
residents will have more control over who serves on the board
residents voted to switch the district from a Type I school
district to a Type II school district, with approximately 77%
of the voters expressing their desire for the change. Soon
after the election, the City Council passed a first reading
ordinance which provided for about $2.5 million worth of
capital improvements throughout the school system. This
ordinance was passed, without the appropriate authority, on
December 20, 2016. City Council admits this was a mistake,
and the City does not contend otherwise. On March 28, 2017, a
special school board election took place. This election
resulted in the addition of two members to the school board.
The board, with this addition, now consists of nine members.