In 2004, Trenton voters opposed a City Council ordinance which was pushed through to reorganize the Trenton Police Department, changing the table of organization in a way to suit the will of its non-resident civilian Police Director. When it passed despite their opposition, they circulated petitions and filed enough signatures to stop the ordinance pending a referendum vote. The City, eager to muzzle the voters, obtained a trial court ruling that the voters had no business interfering with the Police Department table of organization.
That ruling was overturned on by the appeals court, but the City persisted, testing the will of the people in the Supreme Court. Katz & Dougherty met that challenge and won an even broader ruling at the highest level of the New Jersey court system. In a published decision, In re Ordinance 04-75, 192 N.J. 446, 931 (2006), the Supreme Court swept away decades of earlier rulings which allowed sophisticated arguments that certain ordinances were “unfit” for the public to participate in. Following the ruling, a new day dawned, opening up “any ordinance” to public challenge (absent a clearly expressed statute putting it off limits).
Three years later, the same City of Trenton Administration, desperate to raise money to meet operating budget expenses, made the classic error of attempting to plug recurrent budget gaps (annual shortages between regular expenses and regular income) by selling income-producing assets. The City’s Mayor got the City Council to vote in favor of the sale of all of the suburban branches of the Trenton Water Utility which represented 60% of the utility’s annual revenue of over $40 Million.
In February, 2009, a committed group of citizens formed the Trenton Water Works Protest Committee and, with the help of Katz & Dougherty, prepared and circulated protest petitions against the ordinance authorizing the sale, hoping to put the matter to the public on a referendum vote.
Again, the City ran to court to stop the petition vote and won a decision of the trial court, ruling an Ordinance authorizing the sale of water utility lines was not one of the “any ordinances” that the Supreme Court had in mind when it made its In re Ordinance 04-75 ruling. This time the Appellate Division (all three judges) agreed.
On appeal to the Supreme Court, however, the two lower courts were reversed. In re City of Trenton Ordinance 09-02 411 N.J.Super. 135 (2010) the Supreme Court reiterated its Ordinance 04-75 ruling. The Faulkner Act’s permission to protest “any ordinance” meant just what it said. Its ruling cemented the right of protest for voters to have the last say on all matters which are not expressly ruled out-of-bounds. As a post script, the referendum election was held on June 15, 2010 and the Ordinance which was under protests was defeated by just less than 80% of the vote.