NJ Supreme Court Rules Faulkner Act Violation Warrants Award of Attorneys Fees

The New Jersey Supreme Court recently addressed the role of the clerk in determining whether referendum petitions meet the requirements of the Faulkner Act, as well the repercussions for exceeding that authority. In a precedential ruling, the panel held that the City of Hoboken Clerk lacked the discretion to prevent the filing of a petition based on facial insufficiency. In doing so, the panel further held that the clerk violated the New Jersey Civil Rights Act.

The Legal Background

The Optional Municipal Charter Law, commonly known as the Faulkner Act, authorizes voters in municipalities organized under the statute “to approve or reject at the polls . . . any ordinance passed by the council, against which a referendum petition has been filed as herein provided.” The referendum petition must be filed within 20 days after final passage of the ordinance and be signed by a number of the legal voters of the municipality equal in number to at least 15 percent of the total votes cast in the municipality at the last election at which members of the General Assembly were elected.

The Facts of the Case

In Tumpson v. Farina, a group of citizens attempted to file a referendum petition challenging a rent control ordinance adopted by the Hoboken City Council. They filed a petition with the clerk, James Farina, on the day the filing deadline expired. However, he did not accept the petition on the grounds that it “did not contain a sufficient number of signatures to constitute a properly filed petition for referendum.” He returned it as “unfiled.”  The committee of petitioners subsequently sought to amend the petition with additional signatures. Farina again rejected the petition, on the ground that the twenty-day period to file a referendum petition had passed. The committee subsequently filed a verified complaint and order to show cause.

As noted in a prior post, the Appellate Division concluded that the clerk’s rejection of the petition violated the Faulkner Act, finding that “[a] municipal clerk lacks the discretion to refuse to file a petition, even if the signatures thereon are less than the mandated fifteen percent of qualified voters.” However, The appellate panel determined that the committee members did not suffer a deprivation of a right because the court provided the ultimate remedy – the referendum.

The Court’s Decision

On appeal, the Supreme Court of New Jersey held that Farina violated the right of referendum guaranteed by the Faulkner Act and deprived plaintiffs of a substantive right protected by the Civil Rights Act, thus entitling them to attorney’s fees.

“The refusal of the city clerk to accept the filing of the referendum petition constituted the deprivation of a substantive right,” Justice Barry Albin wrote for the majority. “The vindication of that right under the Civil Rights Act entitled the [plaintiffs] to an award of attorney’s fees.”

In so ruling, the state Supreme Court rejected the municipality’s argument that claims under the New Jersey Civil Rights Act should be limited to discrimination. “That interpretation…is at complete odds with the broadly worded language of the act,” the majority concluded. “If the Legislature intended to limit the substantive rights protected by the act to only those involving discrimination, it undoubtedly would have said so.”

The court also held that the fact that the court provided a judicial remedy by compelling the clerk to abide by the Faulkner Act and process the referendum petition did not change the nature of the Clerk’s earlier act, which deprived the Committee of a statutory right.

The Court’s decision is significant, in that it has the potential to expose New Jersey municipalities to costly liability under the New Jersey Civil Rights Act. For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group

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