Daniel Tumpson v. James Farina (072813)

SYLLABUS

(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
interest of brevity, portions of any opinion may not have been summarized.)

Daniel Tumpson, et al. v. James Farina, et al. (A-13/14-13) (072813)

Argued March 31, 2014 -- Decided July 31, 2014

ALBIN, J., writing for a majority of the Court.

In this appeal, the Court addresses two issues: whether the Clerk of the City of Hoboken violated the
referendum provisions of the Faulkner Act by refusing to file a petition and, if so, whether the City Clerk deprived
plaintiffs of a substantive statutory right protected by the New Jersey Civil Rights Act, thus entitling them to
attorney’s fees.

The City of Hoboken is a Faulkner Act municipality and its citizens are empowered to challenge an
ordinance in a referendum, provided the challengers file with the city clerk a petition containing signatures of
qualified voters numbering at least fifteen percent of the votes cast in the last election of members of the General
Assembly. N.J.S.A. 40:69A-185. In February 2011, the Hoboken City Council introduced Ordinance Z-88 to
amend the city’s rent control code. The ordinance limits the remedies for tenants, living in rent-controlled units,
who seek recoupment for rent overcharges. The Council adopted the ordinance and, on March 11, 2011, the mayor
approved it. Plaintiff Daniel Tumpson and others formed a Committee of Petitioners to bring a referendum
challenge to the ordinance. Tumpson was informed by the Hudson County Clerk’s Office that the last General
Assembly election was held in 2007 and that 6480 votes were cast in Hoboken. That information was mistaken
because the last General Assembly election was held in 2009. Based on the 2007 election tally, the signatures of
972 qualified voters were necessary for a referendum, whereas based on the 2009 tally the required number was
either 1967 or 2189. City Clerk James Farina provided plaintiffs, in separate letters, two different tallies for 2009.
On March 30, 2011, plaintiffs filed with the City Clerk a referendum petition containing 1442 signatures. The Clerk
refused to accept the petition because it lacked the minimum number of signatures based on the 2009 vote count.
On April 11, 2011, plaintiffs attempted to file a supplemental petition with an additional 872 signatures. The clerk
rejected this supplemental petition on the ground that the twenty-day period to file a referendum petition had passed.

On May 6, 2011, plaintiffs filed an action in lieu of prerogative writ seeking, among other things, an order
directing the Clerk to certify the rent-control referendum petition as valid and to suspend Ordinance Z-88 until the
referendum was approved or disapproved by the voters. Plaintiffs also sought relief under the New Jersey Civil
Rights Act, N.J.S.A. 10:6-2(c), for a violation of their statutory right of referendum. On June 14, 2011, the trial
court granted plaintiffs partial relief, finding that the Clerk’s refusal to accept for filing the referendum petition
violated provisions of the Faulkner Act. The court ordered the Clerk to process both the petition and amended
petition and to determine their sufficiency in accordance with the applicable statutes. The court did not address the
civil-rights claim. The Clerk then determined that the signatures in the original petition and supplemental filing fell
short of the required signatures. Plaintiffs submitted additional signatures, bringing the total to 2224, more than the
fifteen percent required for the referendum to proceed. The Clerk, however, rejected the referendum petition
because the additional signatures were not submitted in a timely manner.

After a tangled path of motions and appeals, the matter was remanded to the trial court for a ruling on
plaintiffs’ motion to enforce litigants’ rights and for a ruling on the civil-rights claim. On August 25, the court
ordered the Clerk to certify the petition and enjoined enforcement of the ordinance. On October 24, the trial court
granted summary judgment in favor of plaintiffs on their civil-rights claim, finding that defendants Hoboken and the
City Clerk “violated Plaintiffs’ substantive right under the referendum laws and are therefore liable” under N.J.S.A.
10:6-2(c) of the New Jersey Civil Rights Act. The court also found that plaintiffs were entitled to an award of
attorney’s fees and costs pursuant to N.J.S.A. 10:6-2(f). On November 8, 2011, the ordinance was submitted to the
voters of Hoboken and the voters approved it. Defendants appealed the finding of a civil-rights violation and the
award of attorney’s fees.

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 In a published opinion, the Appellate Division affirmed all but the trial court’s finding of a civil rights
violation. Tumpson v. Farina, 431 N.J. Super. 164 (App. Div. 2013). 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. Accordingly, the award of attorney’s fees was vacated. The Supreme Court granted plaintiffs’ petition
for certification and defendants’ cross-petition. 216 N.J. 4 (2013).

HELD: The City Clerk 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.

1. The Faulkner Act, N.J.S.A. 40:69A-185 to -192, contemplates a two-step process for validating a referendum
petition. If the initial petition is found insufficient, then a corrective, supplemental petition may be filed. Failure to
attach to the petition the requisite number of signatures is treated no differently under the Faulkner Act than
attaching a large number of signatures of unqualified voters. The supplemental petition allows the referendum
proponents to file a petition conforming with the statutory scheme, regardless of the reasons that made the initial
petition deficient. The municipal clerk does not have the discretion to prevent the filing of a petition based on facial
insufficiency. The Hoboken City Clerk violated the Faulkner Act by rejecting plaintiffs’ petition. (pp. 14-26)

2. Plaintiffs’ claim under the Civil Rights Act must rise or fall on whether the Clerk deprived them of a substantive
right. Plaintiffs must prove that (1) “the Constitution or laws of this State” conferred on them a substantive right; (2)
the City Clerk deprived them of that right; and (3) the Clerk was “acting under color of law” when he did so.
N.J.S.A. 10:6-2(c). The Hoboken City Clerk was clearly acting in his official capacity and therefore under color of
law when he rejected plaintiffs’ referendum petition. The Court must therefore examine two specific issues:
whether “the power of referendum” granted to the people by the Faulkner Act constitutes a substantive right and, if
so, whether the City Clerk deprived plaintiffs of that right. (pp. 26-28)

3. Modeled after the analogous Federal Civil Rights Act, 42 U.S.C.A. § 1983, the State Civil Rights Act is intended
to provide what Section 1983 does not: a remedy for the violation of substantive rights found in the State
Constitution and laws. To determine whether the State Constitution or state law confers a right on a class of
individuals, the Court applies the test developed by the United States Supreme Court in Blessing v. Freestone, 520
U.S. 329 (1997). A plaintiff must show that (1) the Legislature intended the statute to “benefit the plaintiff”; (2)
“the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain
judicial competence”; and (3) “the statute must unambiguously impose a binding obligation on the States.” Id. at
340-41. The Court has no difficulty concluding that the “power of referendum” is a right under that test. First, the
Faulkner Act confers a benefit on plaintiffs and the entire class of voters in Hoboken. Second, this is not the
enforcement of an amorphous statute that strains judicial competence. Last, the Faulkner Act unmistakably imposes
a binding obligation on the Hoboken City Clerk to accept for filing a referendum petition, to certify the petition if it
meets the statutory criteria, and to place the challenged ordinance before the voters. In addition, plaintiffs must
show that the right is substantive, not procedural. “Substantive” addresses those rights and duties that may give rise
to a cause of action. Because the City Clerk’s failure to file the referendum petition gave rise to a cause of action,
by definition, the right of referendum is substantive in nature. (pp. 28-36)

4. Because plaintiffs have satisfied the three-factor Blessing test and because the right of referendum is substantive,
defendants must show that the enforcement of this right under the New Jersey Civil Rights Act is incompatible with
the Faulkner Act. Nothing in the broad-based language of the Civil Rights Act remotely suggests that the drafters
did not intend its remedies to apply to enforcement of the right of referendum. Indeed, one of the most powerful
remedies of the New Jersey Civil Rights Act, the attorney’s fees provision of N.J.S.A. 10:6-2(f), makes the two
legislative schemes complementary. With that provision, citizens thwarted by official action denying them the
benefit of a substantive statutory right have the ability to attract competent counsel and take an appeal directly to the
voters who can then approve or reject an ordinance at the polls. The Court concludes that the Faulkner Act confers a
substantive right of referendum protected by the New Jersey Civil Rights Act. (pp. 36-40)

5. That the Law Division later provided a judicial remedy by compelling the Clerk to abide by the Faulkner Act and
process the referendum petition does not alter the nature of the Clerk’s earlier act, which deprived plaintiffs of a
statutory right. Moreover, that the Clerk acted in good faith or that no precedential authority had spoken precisely to
the facts in this case does not bar equitable relief under the New Jersey Civil Rights Act -- no more than it bars relief

2
under Section 1983 of the federal Civil Rights Act. The City Clerk deprived plaintiffs of their substantive right of
referendum when he refused to file their referendum petition and plaintiffs had a right to equitable relief to enforce
that right. (pp. 40-48)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED to the trial court for further proceedings consistent with the Court’s opinion.

JUSTICE PATTERSON, CONCURRING IN PART and DISSENTING IN PART, joined by
JUSTICE LaVECCHIA, submits that the majority applies the New Jersey Civil Rights Act beyond its intended
parameters when it construes a municipality’s assertion of a good faith legal position in an area of unsettled law to
be a deprivation of plaintiffs’ civil rights within the meaning of N.J.S.A. 10:6-2(c).

CHIEF JUSTICE RABNER, JUSTICE FERNANDEZ-VINA, and JUDGE RODRÍGUEZ
(temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE PATTERSON filed a separate opinion,
concurring in part and dissenting in part, in which JUSTICE LaVECCHIA joins. JUDGE CUFF
(temporarily assigned) did not participate.

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 SUPREME COURT OF NEW JERSEY
A-13/14 September Term 2013
072813

DANIEL TUMPSON, RUSSELL
HOOVER, ERIC VOLPE, CHERYL
FALLICK and JOEL HORWITZ,

Plaintiffs-Appellants
and Cross-Respondents,

v.

JAMES FARINA, in his capacity
as HOBOKEN CITY CLERK, and
THE CITY OF HOBOKEN,

Defendants-Respondents
and Cross-Appellants,

and

MILE SQUARE TAXPAYER
ASSOCIATION 2009, INC., GINA
DENARDO, individually and on
behalf of all similarly
situated and 611-613, LLC,
individually and on behalf of
all similarly situated,

Intervenors-Respondents.

Argued March 31, 2014 – Decided July 31, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 431 N.J. Super. 164 (2013).

Renée W. Steinhagen and Flavio L. Komuves
argued the cause for appellants and cross-
respondents (New Jersey Appleseed Public
Interest Law Center, Inc. and Zazzali,
Fagella, Nowak, Kleinbaum & Friedman,
attorneys).

1
 Victor A. Afanador argued the cause for
respondents and cross-appellants(Lite
DePalma Greenberg, attorneys; Mr. Afanador
and Jeffrey A. Shooman, on the briefs).

Sean A. Smith argued the cause for
respondents (Brach Eichler, attorneys).

Lawrence S. Lustberg argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Gibbons, attorneys).

Edward W. Purcell, Associate Counsel, argued
the cause for amici curiae New Jersey State
League of Municipalities and New Jersey
Institution of Local Government Attorneys
(William J. Kearns, Jr., General Counsel,
attorney).

JUSTICE ALBIN delivered the opinion of the Court.

In many municipalities, citizens have the right to put to a

popular vote an ordinance passed by a local legislative body.

This process -- known as a referendum -- allows voters to have

“the final say in approving or rejecting an ordinance at the

ballot box.” In re Referendum Petition to Repeal Ordinance 04-

75, 192 N.J. 446, 450 (2007). The right of referendum took root

more than a century ago, during the Progressive Era, as a

response to the increasing influence that special interests

played in the passage of legislation. To counteract that

influence, the right of referendum armed citizens with the power

to appeal directly to the democratic process.

In 1911, Governor Woodrow Wilson signed into law the Walsh

Act, L. 1911 c. 221, the first New Jersey law conferring the

2
right of referendum. The Walsh Act extended the right of

referendum to citizens in municipalities organized under a

commission form of government. Today, citizens in

municipalities organized under the Faulkner Act also possess

that valuable right. N.J.S.A. 40:69A-185 to -192.

In this case, a city clerk in a Faulkner Act municipality

refused to accept for filing a petition for referendum on the

ground that the petition did not have a sufficient number of

qualifying signatures. Members of a Committee of Petitioners

brought an action in lieu of prerogative writ to have the

challenged ordinance put on the ballot. They also brought suit

under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c).

Ultimately, the trial court granted the Committee members

the relief they sought, placing the ordinance before the voters

and awarding them, as the prevailing party, attorney’s fees for

the deprivation of a substantive right protected by the Civil

Rights Act.

The Appellate Division affirmed all but the trial court’s

finding of a civil rights violation. The Appellate Division

determined that the Committee members did not suffer a

deprivation of a right because the court provided the ultimate

remedy -- the referendum. Accordingly, the award of attorney’s

fees was vacated.

3
 We now hold that the city clerk violated the right of

referendum guaranteed by the Faulkner Act. We also hold that

the violation of that right deprived the Committee members --

and all of the city’s citizens -- of a substantive right

protected by the Civil Rights Act. The refusal of the city

clerk to accept the filing of the referendum petition

constituted the deprivation of a substantive right. The

vindication of that right under the Civil Rights Act entitled

the Committee members to an award of attorney’s fees. We

therefore affirm in part and reverse in part the judgment of the

Appellate Division.

I.

A.

The facts in this case are not in dispute. In February

2011, the Hoboken City Council introduced Ordinance Z-88 to

amend the city’s rent control code. The ordinance limits the

remedies for tenants, living in rent-controlled units, who seek

recoupment for rent overcharges. In particular, under the

ordinance, a landlord does not have to answer a tenant’s request

for the calculation of rent paid more than two years earlier or

to refund rent overcharges that occurred more than two years

earlier. The Council adopted the ordinance and, on March 11,

2011, the mayor approved it.

4
 The City of Hoboken is a Faulkner Act municipality and its

citizens are empowered to challenge an ordinance in a

referendum, provided the challengers file with the city clerk a

petition containing signatures of qualified voters numbering at

least fifteen percent of the votes cast in the last election of

members of the General Assembly. N.J.S.A. 40:69A-185.

Daniel Tumpson called the Hudson County Clerk’s Office and

asked for the “total votes cast in [Hoboken] at the last

election” of members of the General Assembly. The County

Clerk’s Office told him that the last General Assembly election

was held in 2007 and that 6480 votes were cast in Hoboken. That

information was mistaken because the last General Assembly

election was held in November of 2009.

The County Clerk’s Office error would have significant

consequences. Based on the 2007 election tally, the signatures

of 972 qualified voters were necessary for a referendum whereas

based on the 2009 election tally, the required number was either

1967 or 2189 qualified signatures. The uncertainty about the

2009 numbers is because the City Clerk, in two separate letters,

provided plaintiffs with conflicting figures for the number of

votes cast in Hoboken in that election, 13,112 votes (April 1,

2011 letter) and 14,593 votes (July 7, 2011 letter).1

1
The Clerk did not explain the discrepancy in his letters.

5
 Plaintiffs Daniel Tumpson, Russell Hoover, Eric Volpe,

Cheryl Fallick and Joel Horwitz formed a Committee of

Petitioners to bring a referendum challenge to Ordinance Z-88.

On March 30, 2011, nineteen days after the ordinance was

enacted, plaintiffs filed with defendant James Farina, City

Clerk of Hoboken, a referendum petition containing 1442

signatures. Plaintiffs relied on the 2007 vote tally. The

Clerk refused to accept for filing the referendum petition

because it lacked the minimum number of signatures based on the

2009 vote count.

Aware that they had mistakenly relied on the 2007 rather

than 2009 election vote count, on April 11, 2011, plaintiffs

attempted to file a supplemental petition with an additional 872

signatures. The clerk rejected this supplemental petition on

the ground that the twenty-day period to file a referendum

petition had passed.

B.

On May 6, 2011, plaintiffs filed an action in lieu of

prerogative writ seeking, among other things, an order directing

the Clerk to certify the rent-control referendum petition as

valid and to suspend Ordinance Z-88 until the referendum was

approved or disapproved by the voters. Plaintiffs also sought

relief under the New Jersey Civil Rights Act, N.J.S.A. 10:6-

6
2(c), for a violation of their statutory right of referendum.2

Plaintiffs proceeded by way of an order to show cause.

On June 14, 2011, the trial court granted plaintiffs

partial relief, finding that the Clerk’s refusal to accept for

filing the referendum petition violated provisions of the

Faulkner Act. The court maintained that once the petition was

delivered to the Clerk, “it became his duty under the provisions

of the statute to file” the petition and examine its

sufficiency. The court ordered the Clerk to process both the

petition and amended petition and to determine their sufficiency

in accordance with the applicable statutes. The court also

noted that if the Clerk deemed the petition to be insufficient,

the statute permitted plaintiffs ten days to amend with a

supplemental petition. The court did not address the civil-

rights claim.

On July 7, the Clerk forwarded a letter to plaintiffs

advising that only 1573 of the signatures on the original

petition and supplemental filing were valid, falling short of

the 2189 signatures required to certify the petition. The Clerk

concluded that because the petition was not valid, the ordinance

would not be suspended and the referendum would not go forward.

2
Mile Square Taxpayer Association 2009, Inc., a nonprofit
association of property owners of multifamily residences, was
granted leave to intervene in the action.

7
 On July 18, plaintiffs submitted an additional 844

signatures to supplement the referendum petition. On July 25,

the Clerk determined that 651 of those signatures were valid,

bringing the total number of valid signatures from all three

submissions to 2224, more than the fifteen percent required for

the referendum to proceed. The Clerk, however, rejected the

referendum petition because plaintiffs had “not submitted these

signatures in a timely manner.”

At this point, the procedural history becomes a tangle of

motions and appeals on the trial and appellate levels. A blow-

by-blow description of the litigants’ maneuvers is not necessary

for our purposes. Suffice it to say, the matter was remanded to

the trial court for a ruling on plaintiffs’ motion to enforce

litigants’ rights and for a ruling on the civil-rights claim.

On August 25, the court ordered the Clerk to certify the

petition and enjoined enforcement of the ordinance pending a

“repeal of the ordinance by [a] vote of the council or approval

or disapproval of the ordinance by the voters,” quoting N.J.S.A.

40:69A-189. Intervenor Miles Square Taxpayer Association filed

a Notice of Appeal and moved for a stay of the trial court’s

order. The stay was granted by the Appellate Division and then

vacated by this Court.

On October 24, the trial court granted summary judgment in

favor of plaintiffs on their civil-rights claim. The court

8
found that defendants Hoboken and the City Clerk “violated

Plaintiffs’ substantive right under the referendum laws and are

therefore liable” under N.J.S.A. 10:6-2(c) of the New Jersey

Civil Rights Act. The court also found that plaintiffs were

entitled to an award of attorney’s fees and costs pursuant to

N.J.S.A. 10:6-2(f), an amount that was later determined to be

$69,564.18.

On November 8, 2011, the ordinance was submitted to the

voters of Hoboken. The voters approved the ordinance.

Defendants appealed.

II.

The Appellate Division identified two issues: whether the

Hoboken City Clerk failed to comply with the referendum

provisions of the Faulkner Act and, if so, whether that failure

constituted a violation of the New Jersey Civil Rights Act,

N.J.S.A. 10:6-1 to -2, which allows the prevailing party an

award of attorney’s fees. Tumpson v. Farina, 431 N.J. Super.

164, 168 (App. Div. 2013).

The appellate panel observed that under the framework of

the Faulkner Act, a committee of petitioners is allowed to

submit a referendum petition and then, if the petition is

defective, to file supplemental papers to amend the petition.

Id. at 179. The panel determined that “[a] municipal clerk

9
lacks the discretion to refuse to file a petition, even if the

signatures thereon are less than the mandated fifteen percent of

qualified voters.” Ibid. From its review of the statutory

scheme, the panel was “satisfied that the Legislature intended

that petitioners, as here, should enjoy the right to amend an

insufficient petition for referendum, even if the original

petition did not contain signatures from fifteen percent of

qualified voters.” Id. at 180. For that reason, the panel

concluded that the Clerk’s “refusal to file the original

petition was plainly contrary to [N.J.S.A. 40:69A-187].” Ibid.

Despite this statutory violation, the panel did not find

that defendants “deprived” plaintiffs of a substantive statutory

right protected by N.J.S.A. 10:6-2(c) of the New Jersey Civil

Rights Act. Id. at 182. It reasoned that plaintiffs were “not

deprived of [their] right to referendum because the Ordinance

was submitted to the voters of Hoboken.” Id. at 181. The

panel, moreover, did not find that defendants “interfered” with

any of plaintiffs’ substantive rights by “threats, intimidation

or coercion,” N.J.S.A. 10:6-2(c), an alternate ground for a

civil-rights violation. Id. at 182. Therefore, because

plaintiffs were not a prevailing party under the Civil Rights

Act, the panel vacated the attorney’s fees award. Ibid.

We granted both plaintiffs’ petition for certification and

defendants’ cross-petition. Tumpson v. Farina, 216 N.J. 4

10
(2013). Plaintiffs challenge both the Appellate Division’s

finding that the City Clerk’s rejection of the referendum

petition did not constitute a civil-rights violation and its

vacation of the award of attorney’s fees. Defendants challenge

the Appellate Division’s conclusion that the City Clerk did not

have the authority to refuse for filing a petition that was

insufficient on its face. We also granted motions from the

American Civil Liberties Union of New Jersey (ACLU), the New

Jersey League of Municipalities, and the New Jersey Institution

of Local Government Attorneys, to appear as amici curiae.

III.

A.

Plaintiffs essentially argue that, under the reasoning of

the Appellate Division, had they not sought injunctive relief to

vindicate their right of referendum and to put the ordinance on

the ballot, they would have suffered the deprivation of a

substantive right under the Civil Rights Act, but because they

succeeded in securing judicial relief they are now “perversely

penalized” by the denial of attorney’s fees. This strained

interpretation of the Civil Rights Act, plaintiffs suggest, will

not further the goal of encouraging lawyers to undertake cases

that will vindicate the rights of clients who otherwise cannot

afford the high cost of access to the civil justice system. The

11
award of attorney’s fees, plaintiffs maintain, is the inducement

to take these difficult and costly cases.

Echoing this position, amicus curiae ACLU insists that the

New Jersey Civil Rights Act, like other fee-shifting statutes,

is “‘designed to attract competent counsel’” to represent

“‘plaintiffs with bona fide claims’” of “‘infringement of

statutory rights,’” (quoting Coleman v. Fiore Bros., 113 N.J.

594, 598 (1989)). Here, according to the ACLU, plaintiffs were

the prevailing party under N.J.S.A. 10:6-2(f) because they

obtained an enforceable judgment on the merits -- a result that

would entitle them to attorney’s fees under 42 U.S.C.A. § 1983

and § 1988, (citing Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 604, 121 S. Ct.

1835, 1840, 149 L. Ed. 2d 855, 863 (2001)). The ACLU explains

that to conclude, as did the Appellate Division, that injunctive

relief erased the deprivation that occurred in this case will

“eviscerate any claim to attorney’s fees under any

circumstances.” Simply put, the ACLU submits that “[t]he

clerk’s refusal to place the referendum on the ballot was itself

the deprivation of a right” requiring the award of attorney’s

fees.

B.

Defendants City Clerk and City of Hoboken argue that

plaintiffs’ claim is moot because plaintiffs received all the

12
judicial relief to which they were entitled -- a vote on the

ordinance -- and therefore “the Appellate Division had no

warrant to reach out and decide the underlying issues.”

Defendants also maintain that the Appellate Division erred in

its interpretation of N.J.S.A. 40:69A-185 of the Faulkner Act by

concluding that the City Clerk did not have the right to reject

“a facially defective petition.” Defendants urge this Court to

give the language of N.J.S.A. 40:69A-185 a “natural reading”

that would allow the City Clerk to make the sensible decision to

refuse to accept a referendum petition that does not have the

minimum number of signatures on the face of the petition. In

defendants’ view, a facially defective petition should not

trigger the referendum process and therefore the Clerk’s actions

were not “a clear abuse of discretion.”

Amici curiae League of Municipalities and Institution of

Local Government Attorneys, in a joint brief, urge this Court to

narrowly construe the protections of the New Jersey Civil Rights

Act, which provides relief to “[a]ny person who has been

deprived of . . . any substantive rights . . . secured by the

Constitution or laws of this State,” N.J.S.A. 10:6-2(c)

(emphasis added). They concede that an expansive reading of the

Act “would be in line with the federal Civil Rights Act,” 42

U.S.C.A. § 1983. They, however, believe that such a reading “is

not supported by the Legislative history of [the New Jersey

13
Civil Rights Act]” and would “be detrimental to the

municipalities and taxpayers of this State.” They ask this

Court to interpret the Act as applying only to the “subset of

laws which protect against the deprivation of civil liberties

and not the general laws of New Jersey.” In their view, the

Faulkner Act “does not create a statutorily enforceable right”

under the Civil Rights Act, and “[a]n action in lieu of

prerogative writ[] is an enforcement mechanism that displaces

the [Act].”

IV.

The Court must address two issues: whether the City Clerk

violated the referendum provisions of the Faulkner Act by

refusing to file a petition, which on its face lacked signatures

of fifteen percent of the number of voters who cast ballots for

members of the General Assembly in Hoboken in 2009, and, if so,

whether the City Clerk deprived plaintiffs of a substantive

statutory right protected by the New Jersey Civil Rights Act,

thus entitling them to attorney’s fees.

Defendants initially argue that the issues before this

Court are moot because the ordinance challenged in the

referendum petition was put to a vote. The mootness argument

fails because plaintiffs still contend that they are entitled to

attorney’s fees as the prevailing party on their civil-rights

14
claim, see N.J.S.A. 10:6-2(f), despite the placement of the

ordinance on the ballot. See Transamerica Ins. Co. v. Nat’l

Roofing, Inc., 108 N.J. 59, 64 (1987) (noting that a matter is

moot when there is no issue left to adjudicate). To succeed as

a prevailing party, plaintiffs must show that the right of

referendum is a substantive right guaranteed by the Faulkner Act

and that they were deprived of that right by the City Clerk in

contravention of the Civil Rights Act. At present, defendants

challenge the trial court and Appellate Division’s finding of a

Faulkner Act violation, and plaintiffs challenge the Appellate

Division’s finding that they were not deprived of a substantive

right under the Civil Rights Act. Plaintiffs’ claim to

attorney’s fees keeps both issues alive and in controversy,

regardless of the vote on the ordinance.

V.

Before discussing the referendum provisions of the Faulkner

Act, N.J.S.A. 40:69A-185 to -192, and the New Jersey Civil

Rights Act, N.J.S.A. 10:6-1 to -2, a historical perspective of

how the right to referendum came into being will inform our

analysis.

In 1911, Governor Woodrow Wilson signed into law the Walsh

Act, currently N.J.S.A. 40:70-1 to :76-27, the first New Jersey

municipal charter law to give voters the power of initiative and

15
referendum. Office of Legislative Services, Background Report:

Initiative and Referendum in New Jersey’s Counties and

Municipalities 4 (Oct. 12, 2007) [hereinafter Initiative and

Referendum], available at

http://cityofatlantic.files.wordpress.com/2010/01/ir_counties_mu

nicipalities.pdf.3 The Walsh Act not only created a new form of

municipal governance, it also permitted a referendum on an

ordinance if within ten days of the ordinance’s passage “a

petition signed by electors of the city equal in number to at

least fifteen per centum of the entire vote cast at the last

preceding general municipal election be presented to the board

of commissions.” L. 1911 c. 221 § 15. In calling for the law’s

passage, Governor Wilson explained that the referendum and its

sister provisions, the initiative and recall, were “measures

which enable the people to correct the mistake of their

Governors.” Makes Appeal to Lawmakers, Newark Evening News,

Apr. 11, 1911, at 4. Governor Wilson considered the referendum

one of “the safeguard[s] of politics. It takes power from the

boss and places it in the hands of the people.” Burton J.

Hendrick, The Initiative and Referendum and How Oregon Got Them,

37 McClure’s Magazine 235, 235 (1911). Indeed, despite their

attempts, the “machine bosses” in New Jersey were unsuccessful

3
The New Jersey Constitution does not guarantee a right of
referendum.
16
in stripping the referendum, initiative, and recall provisions

from the Walsh Act. Machine Bosses Join to Defeat Commission

Act, Trenton Evening Times, Apr. 5, 1911, at 1.

New Jersey’s initiative and referendum were the product of

a larger movement that had been sweeping the country during the

Progressive Era of the late Nineteenth and early Twentieth

Centuries. K.K. DuVivier, Out of the Bottle: The Genie of

Direct Democracy, 70 Alb. L. Rev. 1045, 1045 (2007). Reformers

proposed the referendum as a democratic antidote against

special-interest control of the legislative process. Benjamin

Parke De Witt, The Progressive Movement 214 (1915). Indeed,

many perceived that “state legislatures were no longer

representative of the people, but were under the dominance of

political rings and the moneyed interests.” Cyclopedia of

American Government 179 (Andrew C. McLaughlin ed., 1914).

In California, for example, the Southern Pacific Railroad

Company, at the end of the Nineteenth Century, was accused of

“attempting to name and control virtually every candidate for

every political office from governor on down.” Spencer C. Olin,

Jr., California’s Prodigal Sons 2 (1968). “[T]o wrest control

of the political process from private interests,” California

adopted a constitutional amendment authorizing initiatives and

referendums in 1911. James E. Castello, Comment, The Limits of

17
Popular Sovereignty: Using the Initiative Power to Control

Legislative Procedure, 74 Calif. L. Rev. 491, 502–03 (1986).

Thus, the referendum in New Jersey, as elsewhere, was deemed “an

exercise in democracy . . . affording the people the last word

if they choose to take a stand against the wisdom of an

ordinance that the government has enacted.” In re Petition for

Referendum on City of Trenton Ordinance 09-02, 201 N.J. 349, 352

(2010).

Between 1911 and 1950, over sixty municipalities, including

Hoboken, adopted the commission form of government, giving over

forty percent of the State’s population the right to petition

for a referendum. State Comm. on Cnty. & Mun. Gov’t, Modern

Forms of Municipal Government 49–50 (May 1992). In 1950, the

Legislature passed the Faulkner Act, L. 1950, c. 210, which

allowed for new forms of municipal governance. Citizens in

municipalities organized under the Faulkner Act, such as

Hoboken, are granted the power of referendum and initiative.

N.J.S.A. 40:69A-184, -185. Through the Walsh Act, the Faulkner

Act, and special town charters, a majority of New Jersey’s

population may now engage in the referendum process, Initiative

and Referendum, supra, at 4, allowing citizens “the right to

test a challenged ordinance in the crucible of the democratic

process,” In re Ordinance 04-75, supra, 192 N.J. at 450.

18
 VI.

A.

Our primary role here is one of statutory interpretation,

construing various provisions of the Faulkner Act, N.J.S.A.

40:69A-185 to -192, and the New Jersey Civil Rights Act,

N.J.S.A. 10:6-2(c) and (f). Our review of a statutory scheme is

de novo; we owe no deference to the interpretative conclusions

reached by either the trial court or Appellate Division.

Farmers Mut. Fire Ins. Co. v. N.J. Prop.-Liab. Ins. Guar. Ass’n,

215 N.J. 522, 535 (2013).

In construing any statute, we must give words “their

ordinary meaning and significance,” recognizing that generally

the statutory language is “the best indicator of [the

Legislature’s] intent.” DiProspero v. Penn, 183 N.J. 477, 492

(2005) (citations omitted); see also N.J.S.A. 1:1-1 (stating

that customarily “words and phrases shall be read and construed

with their context, and shall . . . be given their generally

accepted meaning”). Each statutory provision must be viewed not

in isolation but “in relation to other constituent parts so that

a sensible meaning may be given to the whole of the legislative

scheme.” Wilson ex rel. Manzano v. City of Jersey City, 209

N.J. 558, 572 (2012) (citing Kimmelman v. Henkels & McCoy, Inc.,

108 N.J. 123, 129 (1987)). We will not presume that the

Legislature intended a result different from what is indicated

19
by the plain language or add a qualification to a statute that

the Legislature chose to omit. DiProspero, supra, 183 N.J. at

493.

On the other hand, if a plain reading of the statutory

language is ambiguous, suggesting “more than one plausible

interpretation,” or leads to an absurd result, then we may look

to extrinsic evidence, such as legislative history, committee

reports, and contemporaneous construction in search of the

Legislature’s intent. Id. at 492–93 (citing Cherry Hill Manor

Assocs. v. Faugno, 182 N.J. 64, 75 (2004); Hubbard ex rel.

Hubbard v. Reed, 168 N.J. 387, 392-93 (2001)). Last, in keeping

with our previous directives, “the referendum statute in the

Faulkner Act should be liberally construed” for the purpose of

“promot[ing] the ‘beneficial effects’” of voter participation.

In re Ordinance 04-75, supra, 192 N.J. at 459 (quoting Retz v.

Mayor & Council of Saddle Brook, 69 N.J. 563, 571 (1976)).

With those legal principles in mind, we turn to the

relevant statutes.

B.

Our first task is to determine whether the City Clerk

violated the Faulkner Act, N.J.S.A. 40:69A-185 to -192, by not

filing plaintiffs’ referendum petition. If the Clerk violated

that Act, our next task is to decide whether the right of

referendum is a substantive right under the New Jersey Civil

20
Rights Act, N.J.S.A. 10:6-2(c). We begin with the relevant

provisions of the Faulkner Act.

N.J.S.A. 40:69A-185 provides that the voters of Faulkner

Act municipalities shall “have the power of referendum which is

the power to approve or reject at the polls any ordinance”

passed by the council. Generally, “[n]o ordinance passed by the

municipal council” takes effect before twenty days after its

approval. Ibid. In this case that approval occurred when the

mayor signed the ordinance into law. Those challenging an

ordinance through a referendum petition have two opportunities

to garner a sufficient number of lawful signatures to place an

ordinance on the ballot. N.J.S.A. 40:69A-185 to -188. The

first opportunity is during the twenty-day period before the

ordinance takes effect. N.J.S.A. 40:69A-185. If the initial

petition does not have the requisite number of lawful signatures

as determined by the municipal clerk, then the challengers have

ten days to file a supplemental petition with a sufficient

number of lawful signatures to meet the statutory threshold.

N.J.S.A. 40:69A-187, -188.

With that overview, we now examine the statutes at issue.

If, within the twenty-day grace period before the ordinance

takes effect,

a petition protesting against the passage of
such ordinance shall be filed with the
municipal clerk and if the petition shall be

21
 signed by a number of the legal voters of
the municipality equal in number to at least
15% of the total votes cast in the
municipality at the last election at which
members of the General Assembly were
elected, the ordinance shall be suspended
from taking effect until proceedings are had
as herein provided.

[N.J.S.A. 40:69A-185 (emphasis added).]

The requirement that the petition “shall be filed with the

municipal clerk” imposes on plaintiffs the duty to deliver the

documents challenging the ordinance. Nothing in the statute

suggests that the City Clerk can refuse to accept the petition

for filing. Had the statute’s drafters intended a different

result, the provision would read that the petition “shall be

filed by the municipal clerk.” This construction of N.J.S.A.

40:69A-185 conforms with other provisions in the statutory

scheme. For example, N.J.S.A. 40:69A-189 provides that “[u]pon

the filing of a referendum petition with the municipal clerk,

the ordinance shall be suspended until ten days following a

finding by the municipal clerk that the petition is

insufficient.” (Emphasis added). Thus, the filing of the

petition with the Clerk triggers an inquiry into the adequacy of

the petition.

The requirement that “the petition shall be signed” by the

requisite number of “legal voters” based on “the total votes

cast in the municipality at the last” General Assembly election

22
necessitates that the Clerk investigate and determine two

significant matters. One is the actual number of votes cast in

the last General Assembly election. Here, the Hudson County

Clerk informed plaintiffs of the wrong election year, and the

Hoboken City Clerk provided plaintiffs with two different vote

counts for the right election year. The potential that the

initial petition might not conform to the dictates of various

statutes of the Faulkner Act is one apparent reason that the

statutory scheme permits the challengers to file a supplemental

petition. That is why the statute provides that “the ordinance

shall be suspended until ten days following a finding by the

municipal clerk that the petition is insufficient,” N.J.S.A.

40:69A-189.

Second, the Clerk also must verify that only “legal voters”

placed their signatures on the petition, N.J.S.A. 40:69A-185,

and that the petition is in the form prescribed by N.J.S.A.

40:69A-186 to -187. N.J.S.A. 40:69A-187 specifically provides

that “[w]ithin twenty days after a petition is filed, the

municipal clerk shall determine whether each paper of the

petition has a proper statement of the circulator and whether

the petition is signed by a sufficient number of qualified

voters.” That inquiry -- after the filing of the petition --

may lead the Clerk to disallow a certain number of signatures or

identify some other defect. The Clerk is required, if he finds

23
“that the petition is insufficient,” to “set forth in [a]

certificate the particulars in which it is defective and shall

at once notify at least two members of the Committee of the

Petitioners of his findings.” N.J.S.A. 40:69A-187. The Clerk’s

deficiency findings may necessitate a supplemental petition, as

was evident in this case. See N.J.S.A. 40:69A-186 to -190.

Last, if the Clerk finds that either the initial or

supplemental petition “filed with him in accordance with [the

Faulkner Act] is sufficient, the clerk shall submit the same to

the municipal council without delay.” N.J.S.A. 40:69A-190. In

that event, the municipal council first has the opportunity “to

repeal [the] ordinance as requested by a referendum petition.”

N.J.S.A. 40:69A-191. If the council fails to do so, “the

municipal clerk shall submit the ordinance to the voters.”

Ibid.

C.

We conclude that the various intersecting statutes

contemplate a two-step process for validating a referendum

petition. If the initial petition is found insufficient, then a

corrective, supplemental petition may be filed. The statutory

scheme does not indicate that one kind of deficiency in an

initial petition empowers the Clerk to refuse to file the

petition and to forgo giving the “particulars in which [the

petition] is defective.” See N.J.S.A. 40:69A-187. Thus the

24
failure to attach to the petition the requisite number of

signatures is treated no differently under the Faulkner Act than

attaching to the petition a large number of signatures of

unqualified voters. No one suggests that once the requisite

number of signatures is appended to the petition that a

supplemental petition could not be filed even if many signatures

were determined to come from unqualified voters.4 The committee

of petitioners has but one opportunity, for whatever reason, to

correct the defects in the petition.

As we have seen in this case, the source of an error may

even be a government agency. In this case, the Hudson County

Clerk gave plaintiffs the wrong election year from which to make

the voter-count calculation. The City Clerk provided

plaintiffs, in two separate letters, with conflicting figures on

the number of votes cast in Hoboken, and the discrepancy

amounted to a difference of more than fourteen hundred votes.

The Clerk’s second letter indicated that his office had reviewed

“Hudson County documents” in determining the number of votes

cast in Hoboken. It appears that even vote counts may not be

self-evident.

The supplemental petition allows the referendum proponents

to file a petition conforming with the statutory scheme,

4
We do not address here a case in which a committee of
petitioners has submitted in bad faith a willfully non-compliant
petition. That case is not before us.
25
regardless of the reasons that made the initial petition

deficient. When the referendum statutes are read as an

integrated whole and liberally construed for the purpose of

promoting voter participation, it is clear that the municipal

clerk does not have the discretion to prevent the filing of a

petition based on facial insufficiency.

We are in agreement with the trial court and Appellate

Division: the Hoboken City Clerk violated the terms of the

Faulkner Act by rejecting plaintiffs’ petition as filed.

VII.

A.

We next must determine whether the City Clerk’s refusal to

file or certify the referendum petition constitutes a

deprivation of “any substantive rights . . . secured by the

Constitution or laws of this State,” entitling plaintiffs to

relief under the New Jersey Civil Rights Act. N.J.S.A. 10:6-

2(c). Therefore, we must decide whether the people’s “power to

approve or reject at the polls any ordinance” through the

referendum process, as guaranteed in N.J.S.A. 40:69A-185, is a

substantive right protected by N.J.S.A. 10:6-2.

We start, as we must, with the plain language of the

relevant provisions of the Civil Rights Act. N.J.S.A. 10:6-2(c)

provides:

26
 Any person who has been deprived of . . .
any substantive rights, privileges or
immunities secured by the Constitution or
laws of this State, or whose exercise or
enjoyment of those substantive rights,
privileges or immunities has been interfered
with or attempted to be interfered with, by
threats, intimidation or coercion by a
person acting under color of law, may bring
a civil action for damages and for
injunctive or other appropriate relief.

In addition to the relief enumerated above, a “court may award

the prevailing party reasonable attorney’s fees and costs.”

N.J.S.A. 10:6-2(f).

Although N.J.S.A. 10:6-2(c) provides relief for either the

deprivation of a statutory substantive right or the interference

with such a right “by threats, intimidation or coercion,” no one

contends that the Clerk engaged in “threats, intimidation or

coercion” in refusing to file the referendum petition.

Therefore, plaintiffs cannot look to the interference portion of

this statute for relief. Their claim under the Civil Rights Act

must rise or fall on whether the Clerk deprived them of a

substantive right.

To establish a violation of the Civil Rights Act in this

case, plaintiffs must prove that (1) “the Constitution or laws

of this State” conferred on them a substantive right; (2) the

City Clerk deprived them of that right; and (3) the Clerk was

“acting under color of law” when he did so. N.J.S.A. 10:6-2(c).

No one disputes that the Clerk was acting in his official

27
capacity and therefore under color of law when he rejected

plaintiffs’ referendum petition. Therefore, we must examine two

specific issues: whether “the power of referendum” granted to

the people by the Faulkner Act constitutes a substantive right

and, if so, whether the City Clerk deprived plaintiffs of that

right.

B.

The Civil Rights Act does not define substantive right, nor

is the term self-explanatory. By its very nature, the term is

broad in its conception. Although the Act’s sparse legislative

history sheds little light on the precise meaning of the term,

it does give a sense of the intended scope of the Act. The

Senate Judiciary Committee Statement appended to the proposed

legislation explains that the Civil Rights Act is intended to

“provide the citizens of New Jersey with a State remedy for

deprivation of or interference with the civil rights of an

individual.” S. Judiciary Comm. Statement to S. No. 1558, 211th

Leg. 1 (May 6, 2004). The Act was expected to fill “potential

gaps which may exist under remedies currently provided by New

Jersey’s ‘Law Against Discrimination,’ N.J.S.A. 10:5-1 et seq.,

and the law authorizing a civil cause of action for bias crime

victims, N.J.S.A. 2A:53A-21.” Ibid.

Defendants maintain that, based on that brief legislative

statement, the Act should be limited to civil rights cases

28
involving discrimination. That interpretation, however, is at

complete odds with the broadly worded language of the Act. If

the Legislature intended to limit the substantive rights

protected by the Act to only those involving discrimination, it

undoubtedly would have said so. See DiProspero, supra, 183 N.J.

at 493. Moreover, the “gap-filling” could not have been for the

purpose of plugging holes in the Law Against Discrimination

(LAD), N.J.S.A. 10:5-1 to -49, which is a comprehensive

statutory scheme providing virtually the same remedies offered

by the Civil Rights Act. Rather, the “gap-filling” language

implies that the Legislature intended to expand the remedies

already provided to victims of bias and discrimination under LAD

to citizens whose other substantive rights were not adequately

protected under existing law.

Importantly, the meager legislative history tells us that

our State Civil Rights Act is modeled off of the analogous

Federal Civil Rights Act, 42 U.S.C.A. § 1983, and is intended to

provide what Section 1983 does not: a remedy for the violation

of substantive rights found in our State Constitution and laws.

S. Judiciary Comm. Statement to S. No. 1558, supra; Press

Release, Office of the Governor, Governor’s Statement Upon

Signing Assembly Bill 2073 (Sept. 10, 2004).

The interpretation given to parallel provisions of Section

1983 may provide guidance in construing our Civil Rights Act.

29
See Garrison v. Twp. of Middletown, 154 N.J. 282, 289 (1998)

(noting that interpretation of California Tort Claims Act may be

used as guide in construing similar New Jersey Tort Claims Act

provisions).

C.

Section 1983, in relevant part, provides that any person

who, under color of law, deprives another person “of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.” 42 U.S.C.A.

§ 1983. The “prevailing party” in a Section 1983 action may be

awarded “a reasonable attorney’s fee” as well as costs. 42

U.S.C.A. § 1988(b).

Section 1983 is not itself a source of substantive rights,

but rather a vehicle by which rights conferred by the Federal

Constitution and federal laws may be vindicated. Chapman v.

Houston Welfare Rights Org., 441 U.S. 600, 617-18, 99 S. Ct.

1905, 1916, 60 L. Ed. 2d 508, 522–23 (1979); Baker v. McCollan,

443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d

433, 442 n.3 (1979). Section 1983 protects against the

violation of federal rights, not federal laws. Blessing v.

Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359, 137 L. Ed.

2d 569, 582 (1997).

30
 A statute does not give rise to a right under Section 1983

unless a plaintiff can satisfy three factors. A plaintiff must

show that (1) Congress intended the statute to “benefit the

plaintiff”; (2) “the right assertedly protected by the statute

is not so ‘vague and amorphous’ that its enforcement would

strain judicial competence”; and (3) “the statute must

unambiguously impose a binding obligation on the States.” Id.

at 340–41, 117 S. Ct. at 1359, 137 L. Ed. 2d at 582 (citations

omitted).

“Even if a plaintiff demonstrates that a federal statute

creates an individual right, there is only a rebuttable

presumption that the right is enforceable under § 1983.” Id. at

341, 117 S. Ct. at 1360, 137 L. Ed. 2d at 582. That is because

Congress may “‘specifically foreclose[] a remedy under § 1983’”

either expressly “or impliedly, by creating a comprehensive

enforcement scheme that is incompatible with individual

enforcement under § 1983.” Ibid. (citations omitted).

Congress’s intent is the crucial consideration in determining

whether a statute precludes an action under Section 1983.

Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 252, 129 S.

Ct. 788, 793–94, 172 L. Ed. 2d. 582, 590 (2009).

Significantly, in the three cases in which the United

States Supreme Court found that federal statutory schemes

precluded claims under Section 1983, “the statutes at issue

31
required plaintiffs to comply with particular procedures and/or

to exhaust particular administrative remedies prior to filing

suit.” Id. at 254, 129 S. Ct. at 795, 172 L. Ed. 2d at 592

(citing Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers

Ass’n, 453 U.S. 1, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981);

Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d

746 (1984); City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,

125 S. Ct. 1453, 161 L. Ed. 2d 316 (2005)).

In contrast, in Fitzgerald, supra, the Supreme Court

permitted plaintiffs to proceed with a Section 1983 lawsuit

alleging gender discrimination in violation of the Fourteenth

Amendment’s Equal Protection Clause and Title IX, 20 U.S.C.A. §

1681(a), despite available remedies solely under Title IX. 555

U.S. at 248–49, 129 S. Ct. at 792, 172 L. Ed. 2d. at 588. The

Court conclude[d] “that Title IX was not meant to be an

exclusive mechanism for addressing gender discrimination in

schools, or a substitute for § 1983 suits as a means of

enforcing constitutional rights.” Id. at 258, 129 S. Ct. at

797, 172 L. Ed. 2d at 594. The Court reasoned that the Equal

Protection Clause provided “divergent coverage” from Title IX

and that Title IX did not present the type of “comprehensive

remedial scheme” inimical to a Section 1983 action. Ibid.

D.

32
 Our state Civil Rights Act is of recent origin. Although

the issues that arise over its interpretation are new to us, we

have the benefit of an established line of jurisprudence

construing its sister provision, Section 1983. To determine

whether our State Constitution or state law confers a

substantive right on a class of individuals in any particular

case, we will apply the test developed by the United States

Supreme Court in Blessing, supra. We find that approach

sensible and adaptable to our Civil Rights Act. In accord with

the Blessing test, even if we find that a statute confers a

right, we still must determine whether the Legislature did not

intend remedies of our Civil Rights Act to supplant those of

other statutes.

We note two distinct differences between Section 1983 and

our Civil Rights Act. First, our Act protects against the

deprivation of and interference with “substantive rights,

privileges or immunities secured by the Constitution or laws of

this State,” N.J.S.A. 10:6-2(c) (emphasis added), whereas

Section 1983 protects against “the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,”

42 U.S.C.A. § 1983 (emphasis added). Thus, Section 1983

provides remedies for the deprivation of both procedural and

substantive rights while N.J.S.A. 10:6-2(c) provides remedies

33
only for the violation of substantive rights. That difference

must be entered into the equation in applying the Blessing test.

Second, Section 1983 was the product of the Federal Civil

Rights Act of 1871, c. 22, § 1, 17 Stat. 13, 13. In applying

the Blessing test, the United States Supreme Court has analyzed

whether Congress intended a statute enacted after 1871 to

foreclose the available remedies of Section 1983. See

Fitzgerald, supra, 555 U.S. at 253, 129 S. Ct. at 794, 172 L.

Ed. 2d. at 591. Here, because the New Jersey Civil Rights Act

is of recent vintage, we must determine whether the Legislature

did not intend N.J.S.A. 10:6-2(c) to provide remedies in

addition to those in previously enacted statutes or the common

law.

E.

In determining whether the referendum provisions of the

Faulkner Act confer a substantive right on plaintiffs, and their

third-party beneficiaries (the voters of Hoboken), we will apply

the following test: plaintiffs must establish that (1) the

referendum statutes were intended to confer a “benefit” on

plaintiffs as a representative class of voters of Hoboken; (2)

the statutory right to challenge an ordinance and place it

before the voting public is not “so ‘vague [or] amorphous’ that

its enforcement would strain judicial competence”; and (3) the

Faulkner Act “unambiguously impose[s] a binding obligation” on

34
Hoboken. Cf. Blessing, supra, 520 U.S. at 340–41, 117 S. Ct. at

1359, 137 L. Ed. 2d at 582.

Initially, we have no difficulty concluding that the “power

of referendum” is a right under that test. The declaration that

“[t]he voters shall also have the power of referendum,” N.J.S.A.

40:69A-185, makes clear that the benefit conferred is not only

to plaintiffs, but to the entire class of voters in Hoboken.

The right to challenge an ordinance is spelled out in minute

detail in N.J.S.A. 40:69A-185 to -196. Moreover, this is not

the enforcement of an amorphous statute that strains judicial

competence. Last, the Faulkner Act unmistakably imposes a

binding obligation on the Hoboken City Clerk to accept for

filing a referendum petition, N.J.S.A. 40:69A-185, to certify

the petition if it meets the statutory criteria, N.J.S.A.

40:69A-187, and to place the challenged ordinance before the

voters, N.J.S.A. 40:69A-191.

In addition, plaintiffs must show that the right is

substantive, not procedural. “Substantive” addresses those

rights and duties that may give rise to a cause of action, see

Brown & Root Indus. Serv. v. Indus. Comm’n, 947 P.2d 671, 675

(Utah 1997), whereas “procedural” addresses “the manner and the

means” by which those rights and duties are enforced, Shady

Grove Orthopedics Assocs. v. Allstate Ins. Co., 559 U.S. 393,

407, 130 S. Ct. 1431, 1442, 176 L. Ed. 2d 311, 323 (2010). The

35
City Clerk’s failure to file the referendum petition to allow a

vote on the ordinance gave rise to a cause of action. Thus, by

definition, the right of referendum is substantive in nature.

The only remaining question is whether the Legislature in

passing the New Jersey Civil Rights Act either expressly or

impliedly did not intend the Act’s remedies to apply to long-

established actions in lieu of prerogative writ -- mandamus

actions -- to compel an official to enforce the Faulkner Act’s

right of referendum. Because plaintiffs have satisfied the

three-factor Blessing test, defendants must now show that the

enforcement of rights under the New Jersey Civil Rights Act is

incompatible with the Faulkner Act. Defendants have not carried

that burden.

Nothing in the broad-based language of the Civil Rights Act

remotely suggests that the drafters did not intend its remedies

to apply to enforcement of the right of referendum. Had the

Legislature intended to carve out this statutory area,

presumably the Legislature would have said so. See DiProspero,

supra, 183 N.J. at 493. Application of the Civil Rights Act in

this case is not in any way antithetical to the goals of the

Faulkner Act. Indeed, the attorney’s fees provision of the

Civil Rights Act makes the two legislative schemes

complementary.

36
 One of the most powerful remedies of the New Jersey Civil

Rights Act is the award of attorney’s fees to a prevailing

party. See N.J.S.A. 10:6-2(f). This fee-shifting provision is

a mirror of its federal Section 1988 counterpart. When Congress

enacted Section 1988 to allow a prevailing party to receive an

award in a Section 1983 action, it did so because “the private

market for legal services failed to provide many victims of

civil rights violations with effective access to the judicial

process.” Riverside v. Rivera, 477 U.S. 561, 576, 106 S. Ct.

2686, 2695, 91 L. Ed. 2d 466, 481 (1986) (citing H.R. Rep. No.

94-1558, at 3 (1976)). Congress recognized that those seeking

to vindicate their civil rights often “cannot afford to purchase

legal services at the rates set by the private market,” ibid.

(citations omitted), and passed Section 1988 “to ensure that

lawyers would be willing to represent persons with legitimate

civil rights grievances.” Id. at 578, 106 S. Ct. at 2696, 91 L.

Ed. 2d at 482. Our State Legislature, evidently, had the same

motivation in enacting N.J.S.A. 10:6-2(f).

We have spoken of the Legislature’s purpose in awarding

attorney’s fees to successful litigants in cases arising under

the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. There, the

Legislature intended the “counsel-fees provision . . . to

provide a financial incentive for members of the bar to become

‘private attorneys general,’” thus ensuring that “[t]he poor and

37
powerless benefit from the guiding hand of counsel.” Gonzalez

v. Wilshire Credit Corp., 207 N.J. 557, 585 (2011) (internal

quotation marks omitted) (quoting Lemelledo v. Beneficial Mgmt.

Corp., 150 N.J. 255, 268 (1997)). The Legislature could have

had no less a purpose in passing the Civil Rights Act.

In the present case, before passage of the Civil Rights

Act, plaintiffs could seek to compel the City Clerk by judicial

action to process a referendum through an action in lieu of

prerogative writ. But it might seem unlikely that average

citizens looking to participate in the democratic process could

afford to litigate to enforce their substantive right of

referendum. Success in such an action usually does not afford

money damages. With the attorney’s fees provision of N.J.S.A.

10:6-2(f), citizens thwarted by official action denying them the

benefit of a substantive statutory right have the ability to

attract competent counsel.

It is true that a municipality’s violation of citizens’

substantive civil rights will impose some financial burden on

it, as suggested by amici curiae League of Municipalities and

Institution of Local Government Attorneys. But that is a policy

decision resolved by the Legislature when it passed the Civil

Rights Act.

The New Jersey Civil Rights Act was intended to apply to

cases, such as this one, where a citizen deprived of a

38
substantive right, could not otherwise afford to retain counsel.

In essence, the right of referendum is about enfranchisement,

about self-government, and about giving citizens the right to

vote on matters of importance to their community. As earlier

described, the referendum took root in an era when citizens

protested about the outsized influence of special interests in

the legislative process. As Governor Wilson said around the

time of the enactment of New Jersey’s first referendum statute:

the referendum is one of “‘the safeguard[s] of politics,’”

Hendrick, supra, at 235; it “‘enable[s] the people to correct

the mistake of their Governors,’” Makes Appeal to Lawmakers,

supra.

The referendum is direct democracy in its purest sense,

allowing citizens to take an appeal above the heads of their

elected officials and directly to the voters who can then

approve or reject an ordinance at the polls. See In re Trenton

Ordinance 09-02, supra, 201 N.J. at 353 (stating that referendum

power “is an exercise in democracy that profoundly affects the

relationship between the citizens and their government by

affording the people the last word if they choose to take a

stand against the wisdom of an ordinance that the government has

enacted”).

39
 In short, we conclude that the Faulkner Act confers a

substantive right of referendum protected by the New Jersey

Civil Rights Act.

VIII.

A.

The final question we must resolve is whether the Hoboken

City Clerk deprived plaintiffs of their substantive right of

referendum under the Faulkner Act. Defendants contend that

because plaintiffs succeeded in compelling the Clerk to process

the referendum petition and place the ordinance on the ballot,

they were not deprived of their substantive right of referendum.

On the other hand, plaintiffs submit that when the Clerk refused

to file the petition, the deprivation was complete.

We reject defendants’ position for a number of reasons.

First, although neither the Civil Rights Act nor its legislative

history defines the word “deprivation,” it does have a common

understanding. Deprive or deprivation has been defined as “[a]n

act of taking away,” and “[a] withholding of something,” Black’s

Law Dictionary 507 (9th ed. 2009), and “[t]o keep from having or

enjoying,” Webster’s II New College Dictionary 305 (2001).

Certainly, before plaintiffs secured judicial relief, the

Clerk’s refusal to file their referendum petition took away,

withheld, and kept plaintiffs from enjoying their right of

40
referendum. That the Law Division later provided a judicial

remedy by compelling the Clerk to abide by the Faulkner Act and

process the referendum petition does not alter the nature of the

Clerk’s earlier act, which deprived plaintiffs of a statutory

right.

This result is supported by a long line of federal cases in

Section 1983 actions. By its very words, Section 1983

implicates only cases involving the deprivation of a plaintiff’s

statutory or constitutional right. Under Section 1983, federal

courts have found that a plaintiff is deprived of a right at the

point a government official denies a plaintiff a permit or other

authorization to exercise a right, even though judicial relief

is later secured and the plaintiff freely exercises the right

without any interruption. Judicial relief does not extinguish

the earlier deprivation.

For example, when municipal officials in Wichita, Kansas,

denied an anti-abortion group a permit to conduct a protest

parade, the United States Court of Appeals for the Tenth Circuit

found that the plaintiffs were deprived of their First Amendment

rights under Section 1983, despite the District Court’s entry of

an order that allowed the parade to go forward without

interruption. Lippoldt v. Cole, 468 F.3d 1204, 1210–11, 1220

(10th Cir. 2006). The Tenth Circuit concluded that the

plaintiffs “suffered injury by the alleged abridgement of their

41
First Amendment rights when the City denied the parade permits.”

Id. at 1217. Under those circumstances, the plaintiffs were the

prevailing party, entitling them to attorney’s fees. Id. at

1222-24. In short, protesters who receive “an injunction to

exercise their First Amendment rights at a specific time and

place -- say to demonstrate at a Saturday parade” are prevailing

parties because they have secured “all the court-ordered relief

they need.” McQueary v. Conway, 614 F.3d 591, 599 (6th Cir.

2010), cert. denied, 562 U.S. ___, 131 S. Ct. 927, 178 L. Ed. 2d

752 (2011).

Federal courts in Section 1983 actions apparently do not

trouble themselves over whether injunctive relief overturning

government action is premised on remedying the deprivation of a

right that already occurred or on remedying the anticipated

deprivation of a right. See, e.g., People Against Police

Violence v. City of Pittsburgh, 520 F.3d 226, 229 (3d Cir. 2008)

(holding plaintiffs entitled to attorney’s fees in Section 1983

action where district court directed city to provide parade

permit and parade occurred as originally planned); Young v. City

of Chicago, 202 F.3d 1000, 1000–01 (7th Cir. 2000) (holding

plaintiff protestors entitled to attorney’s fees in Section 1983

action where district court directed city to allow protest to

proceed as planned outside of Democratic National Convention);

see also Rogers Grp., Inc. v. City of Fayetteville, 683 F.3d

42
903, 905–06, 911–13 (8th Cir. 2012) (holding plaintiff entitled

to attorney’s fees in Section 1983 action where district court

enjoined ordinance -- before enforcement date -- that would have

resulted in unconstitutional taking of property).

The principle established in these federal cases is that a

plaintiff is entitled to relief for Section 1983 purposes when a

government official blocks access to a right -- e.g., the right

to assemble or protest or vote -- before judicial intervention.

That a court comes to a plaintiff’s rescue does not alter the

nature of the earlier governmental deprivation or anticipated

deprivation.

The dissent basically asserts that because plaintiffs

sought and received immediate judicial relief, plaintiffs lost

their right to file a civil-rights action. If we accepted that

view, the statute would reward inaction and penalize success.

This perverse disincentive is precisely what the Legislature

could not have had in mind in encouraging the vindication of a

right deprived by a public official. Moreover, the dissent’s

examples in which a deprivation of a right occurred do not

exhaust the myriad scenarios in which a deprivation can occur.

Post at ___ (slip op at 8–12).

A plaintiff deprived of a civil right is a prevailing party

in a Section 1983 action “when actual relief on the merits of

his claim materially alters the legal relationship between the

43
parties by modifying the defendant’s behavior in a way that

directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S.

103, 111-12, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494, 503 (1992).

An injunction “will usually satisfy that test.” Lefemine v.

Wideman, 568 U.S. ___, ___, 133 S. Ct. 9, 11, 184 L. Ed. 2d 313,

316 (2012).

A case that makes this point in a voting-rights setting is

Diffenderfer v. Gomez-Colon, 587 F.3d 445 (1st Cir. 2009). In

that case, the plaintiffs, a class of English-speaking residents

of Puerto Rico, filed a Section 1983 action challenging a

decision of the Electoral Commission of Puerto Rico to print

ballots only in Spanish for the November 2008 election. Id. at

449. The federal district court held that “relief was warranted

on the grounds that the Commission’s balloting policy violated

the Voting Rights Act, the First Amendment, and the Equal

Protection Clause of the Fourteenth Amendment.” Ibid.

Accordingly, the district court issued an “injunction directing

the Commission to immediately begin printing bilingual ballots

for use in the November 2008 elections.” Ibid. Afterward,

before appeals were heard challenging the district court’s

ruling, Puerto Rico enacted a law mandating bilingual ballots.

Id. at 450. Nevertheless, the United States Court of Appeals

for the First Circuit declared the plaintiffs the prevailing

party for attorney’s fees purposes because they “obtained the

44
desired practical outcome of their suit through the operation of

that injunction: the Commission in fact distributed bilingual

ballots,” regardless of the intervening legislation. Id. at

454. In other words, the plaintiffs “managed to obtain a

favorable, material alteration in the legal relationship between

the parties prior to the intervening act of mootness.” Id. at

453.

In the present case, the trial court’s grant of relief --

ordering the City Clerk to process the referendum petition --

constituted a relief on the merits “modifying [defendants’]

behavior in a way that directly benefits the plaintiff.” Cf.

Farrar, supra, 506 U.S. at 111-12, 113 S. Ct. at 573, 121 L. Ed.

2d at 503. Before the court’s ruling, plaintiffs were unable to

place the ordinance on the ballot; after the ruling, Hoboken was

required to proceed with the referendum in the next election.

Moreover, we are not reading out of N.J.S.A. 10:6-2(c), as

the dissent claims, the “interference” portion of the statute.

Post at ___ (slip op. at 14–15). Placing obstacles or hindering

the exercise of a right -- without blocking the right --

constitutes an interference. For instance, those acting under

color of law who threaten or intimidate voters have violated the

New Jersey Civil Rights Act, even if those voters have exercised

their franchise by casting ballots. We need not, in this

45
opinion, sketch the various scenarios that would constitute

interference in violation of the Civil Rights Act.

B.

We also reject the dissent’s claim that because “there was

no precedential authority” that spoke precisely to the facts in

this case and because the City Clerk presumably acted in “good

faith,” plaintiffs are not entitled to relief under the New

Jersey Civil Rights Act. Post at ___ (slip op. at 4). Stripped

to its essence, the dissent is suggesting that injunctive relief

is barred by qualified immunity. Under Section 1983, when a

statutory or constitutional right is violated, a plaintiff is

entitled to injunctive relief even if the right was not

“sufficiently clear that a reasonable official would understand

that what he [was] doing violate[d] that right,” Anderson v.

Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed.

2d 523, 531 (1987). See, e.g., Wood v. Strickland, 420 U.S.

308, 314 n.6, 95 S. Ct. 992, 997 n.6, 43 L. Ed. 2d 214, 221 n.6

(1975) (“[I]mmunity from damages does not ordinarily bar

equitable relief as well.”), abrogated in part on other grounds

by Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727,

2738, 73 L. Ed. 2d 396, 410 (1982); Hill v. Borough of Kutztown,

455 F.3d 225, 244 (3d Cir. 2006) (“[T]he defense of qualified

immunity is available only for damages claims -- not for claims

requesting prospective injunctive relief.”); Gormley v. Wood-El,

46
___ N.J. ___, ___ (2014) (slip op. at 51) (“[Q]ualified immunity

does not bar actions for injunctive relief.”). In cases in

which the right is not sufficiently clear, however, the

plaintiff may not secure money damages from a government

official. See Harlow, supra, 457 U.S. at 818, 102 S. Ct. at

2738, 73 L. Ed. 2d at 410 (“[G]overnment officials . . . are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights . . . .” (citations omitted)).

That the Clerk acted in good faith or that a court had not

previously addressed the specific facts in this case does not

bar equitable relief under the New Jersey Civil Rights Act -- no

more than it bars relief under Section 1983. Had plaintiffs

instituted a lawsuit for money damages against the City Clerk,

as opposed to seeking an action for injunctive relief, we would

be dealing with a different question. Here, plaintiffs had a

right to equitable relief to enforce the right of referendum.

C.

In summary, plaintiffs are deprived of a substantive right

protected by the New Jersey Civil Rights Act when a defendant

acting under color of law completely prevents them from

exercising that right. Before plaintiffs secured judicial

relief, the City Clerk prevented plaintiffs from enjoying their

right of referendum. Securing judicial relief does not erase

47
the earlier act of deprivation. We hold that the City Clerk

deprived plaintiffs of their substantive right of referendum

when he refused to file their referendum petition.

IX.

For the reasons explained, we affirm the judgment of the

Appellate Division upholding the trial court’s finding that

defendants violated the Faulkner Act. We reverse that part of

the Appellate Division’s judgment overruling the trial court’s

finding that plaintiffs were deprived of a substantive right

guaranteed by the New Jersey Civil Rights Act and vacating the

trial court’s award of attorney’s fees to plaintiffs. We remand

to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER, JUSTICE FERNANDEZ-VINA, and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUSTICE ALBIN’s
opinion. JUSTICE PATTERSON filed a separate opinion, concurring
in part and dissenting in part, in which JUSTICE LaVECCHIA
joins. JUDGE CUFF (temporarily assigned) did not participate.

48
 SUPREME COURT OF NEW JERSEY
A-13/14 September Term 2013
072813

DANIEL TUMPSON, RUSSELL
HOOVER, ERIC VOLPE, CHERYL
FALLICK and JOEL HORWITZ,

Plaintiffs-Appellants
and Cross-Respondents,

v.

JAMES FARINA, in his capacity
as HOBOKEN CITY CLERK, and
THE CITY OF HOBOKEN,

Defendants-Respondents
and Cross-Appellants,

and

MILE SQUARE TAXPAYER
ASSOCIATION 2009, INC., GINA
DENARDO, individually and on
behalf of all similarly
situated and 611-613, LLC,
Individually and on behalf of
all similarly situated,

Intervenors-Respondents.

JUSTICE PATTERSON, concurring in part and dissenting in

part.

The majority holds today that the City Clerk of the City of

Hoboken did not properly apply the Faulkner Act, N.J.S.A.

40:69A-185 to -192, when he refused to file the petition

submitted by the challengers to Ordinance Z-88, and that the

Clerk’s action deprived plaintiffs of their rights under that

1
Act, in violation of N.J.S.A. 10:6-2(c) of the New Jersey Civil

Rights Act (NJCRA). I concur with the majority that if the City

of Hoboken interfered with plaintiffs’ due process right of

referendum with respect to the disputed ordinance, or attempted

to do so, it did not do so “by threats, intimidation or

coercion” within the meaning of N.J.S.A. 10:6-2(c), and that

plaintiffs accordingly have not presented an interference or

attempted interference claim under the NJCRA. Ante at ___ (slip

op. at 27). I disagree with the holding of the majority,

however, that the City’s actions in this case rose to the level

of a deprivation of plaintiffs’ civil rights under N.J.S.A.

10:6-2(c). Ante at ___ (slip op. at 40).

My conclusion is rooted in the nature of the parties’

underlying dispute. In its opinion today, the majority provides

significant guidance to municipal clerks in Faulkner Act

municipalities when confronted with facially deficient petitions

that do not include the required number of signatures. Ante at

___ (slip op. at 22-24). In the future, municipal clerks will

be on notice of the procedure to be followed when such petitions

are presented for filing.

Until the ruling of the Appellate Division panel in this

case, however, there was no such guidance. When the Hoboken

Municipal Clerk reviewed plaintiffs’ petition, there was no

authority in our case law defining the procedure to be followed

2
when a petition lacking the number of signatures required by the

Faulkner Act was presented. See N.J.S.A. 40:69A-185 (stating

that “the petition shall be signed by a number of the legal

voters of the municipality equal in number to at least 15% of

the total votes cast in the municipality at the last election at

which members of the General Assembly were elected”).

Prior case law regarding the adequacy of petitions under

the Faulkner Act addressed issues different from that presented

by plaintiffs’ petition: the petitioners’ compliance with the

requirement that “the names and addresses of five voters,

designated as the Committee of the Petitioners” “appear on each

petition paper,” pursuant to N.J.S.A. 40:69A-186, or the methods

by which municipal clerks should determine “whether the petition

[was] signed by a sufficient number of qualified voters,”

pursuant to N.J.S.A. 40:69A-187. See Hamilton Twp. Taxpayer’s

Ass’n v. Warwick, 180 N.J. Super. 243, 244-45, 248 (App. Div.)

(upholding municipal clerk’s rescission of his prior

certification of petition signed by requisite number of voters

because he found that “the separate petition sheets omitted the

names and addresses of the five-member Committee of the

Petitioners at the time the voters affixed their signatures”),

certif. denied, 88 N.J. 490 (1981); D’Ascensio v. Benjamin, 142

N.J. Super. 52, 55 (App. Div.) (rejecting trial court’s

specified methods to tally signatures, and authorizing municipal

3
clerk “to adopt any rational means of performing [that] duty,

subject to judicial review” under abuse of discretion standard),

certif. denied, 71 N.J. 526 (1976); Lindquist v. Lee, 34 N.J.

Super. 576, 577, 581-82 (App. Div. 1955) (upholding municipal

clerk’s decision that petition was insufficient, even though it

“contain[ed] a sufficient number of signers,” because it did not

show “[t]he names and addresses of the five voters designated as

the Committee of the Petitioners . . . on each of the petition

papers as required by law”); see also Pappas v. Malone, 36 N.J.

1, 6 (1961) (noting that “in view of the overall uncertainties

in the statute and the substantial public interest involved we

are not disposed to invalidate the clerk’s rejection for his

failure to meet the requirement of specificity”). In these

settings in which the petitions clearly included the minimum

number of signatures required by N.J.S.A. 40:69A-185, appellate

decisions nonetheless afforded to municipal clerks broad

discretion to apply the technical requirements of the Faulkner

Act. Accordingly, prior to this case, there was no precedential

authority that stated precisely how a municipal clerk should

process a Faulkner Act petition with a number of signatures that

fell facially short of the statutory mark.

Accordingly, when the City of Hoboken invoked the technical

requirements of the Act to reject plaintiffs’ patently deficient

petitions, it asserted a good faith legal argument in an area of

4
law in which case law provided little guidance. As the majority

recounts, plaintiffs’ construction of the Faulkner Act

prevailed. In a ruling that would withstand appellate review,

the trial court held that the Clerk’s actions had been arbitrary

and capricious, and ordered him to process and review the

original and supplemental petitions filed by plaintiffs.

In the wake of these developments, plaintiffs achieved

their objective. On the City of Hoboken ballot for the November

8, 2011 general election, the referendum to repeal the disputed

ordinance appeared as Public Question No. 2. Although the

voters rejected plaintiffs’ challenge to the ordinance, the

right of referendum created by the Faulkner Act was afforded to

plaintiffs and all Hoboken citizens in the very election that

plaintiffs had identified in their petition. I respectfully

submit that, at most, the position taken by the Municipal Clerk

triggered an interference, or attempted interference, with the

Faulkner Act right of referendum. I cannot join the majority’s

holding that plaintiffs suffered a deprivation of that right

under N.J.S.A. 10:6-2(c).1

1
The majority depicts this conclusion to be a contention that
qualified immunity should bar injunctive relief in this case.
Ante at ___ (slip op at 46-47). That characterization is
incorrect; I offer no such argument. Instead, I part company
with the majority’s conclusion that the conduct at issue in this
case constitutes a “deprivation” under N.J.S.A. 10:6-2(c).

5
 The meaning of a deprivation of a right is illustrated by

decisions applying 42 U.S.C.A. § 1983, which, unlike the NJCRA,

does not address an “interference” or “attempted interference”

claim. Federal courts, for example, have consistently found a

deprivation of a procedural due process right when a defendant

improperly causes an actual loss of that right, as opposed to a

delay or a temporary obstruction of its exercise. In Carey v.

Piphus, the United States Supreme Court held that two students

suspended from public schools without an adjudicatory hearing

had sustained a deprivation of their right to procedural due

process, warranting an award of nominal damages under 42

U.S.C.A. § 1983, regardless of the ultimate outcome of the case.

435 U.S. 247, 266-67, 98 S. Ct. 1042, 1053-54, 55 L. Ed. 252,

266-67 (1978). The Supreme Court noted that the hearings to

which the plaintiffs were entitled did not occur, and that even

if their “suspensions were justified, and even if they did not

suffer any other actual injury, the fact remains that they

were deprived of their right to procedural due process.” Ibid.;

see also J.A. v. Bd. of Educ. for S. Orange & Maplewood, 318

N.J. Super. 512, 524 (App. Div. 1999) (finding that by

“excluding [a student] from its high school without informing

her of the grounds of its decision, the South Orange-Maplewood

Board of Education violated the due process rights guaranteed to

6
[that student] by the Fourteenth Amendment of the Federal

Constitution”).

Similarly, in Burch v. Apalachee Cmty. Mental Health

Servs., Inc., the plaintiff’s five-month involuntary commitment

during which he was “never . . . accorded a hearing at which to

challenge his commitment and treatment” was sufficient to “state

a procedural due process claim upon which relief could be

granted” under 42 U.S.C.A. § 1983. 840 F.2d 797, 799, 803 (11th

Cir. 1988), aff’d, Zinermon v. Burch, 494 U.S. 113, 110 S. Ct.

975, 108 L. Ed. 2d 100 (1990). A former college president whose

employment was terminated with no adjudicatory hearing was held

to have a cognizable claim under 42 U.S.C.A. § 1983 for

deprivation of his right to procedural due process in Hostrop v.

Bd. of Junior Coll. Dist. No. 515, 523 F.2d 569, 572, 575-76

(7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S. Ct. 1748, 48

L. Ed. 2d 208 (1976). See also Fetner v. City of Roanoke, 813

F.2d 1183, 1185-86 (11th Cir. 1987) (finding that dismissal of

police chief without pretermination hearing raised valid

procedural due process claim under 42 U.S.C.A. § 1983); Enter.

Fire Fighters’ Ass’n v. Watson, 869 F. Supp. 1532, 1541 (M.D.

Ala. 1994) (finding that firefighter’s procedural due process

rights were violated when he was terminated without being

afforded pretermination hearing).

7
 In each of these cases, the plaintiff identified a

procedural due process right to a hearing before action could be

taken against him or her, and the defendant, clearly

contravening the required procedure, did not hold the requisite

hearing. These litigants were not simply subjected to delay,

inconvenience, or the expense of bringing suit to resolve a

close question of law. Each plaintiff was unjustifiably denied

the right to defend him or herself at an adjudicatory hearing,

thus supporting a claim under 42 U.S.C.A. § 1983 for a

deprivation of that right.

New Jersey and federal courts applying 42 U.S.C.A. § 1983

also have recognized deprivation claims in a range of settings

in which the plaintiff has been denied an identified right. In

Endress v. Brookdale Cmty. Coll., the Appellate Division found a

deprivation of the plaintiff’s First Amendment rights when she

was terminated from her employment as a college professor in

retaliation for writing a newspaper article critical of her

employer. 144 N.J. Super. 109, 118-19, 137 (App. Div. 1976).

In another First Amendment case, the court found that Cinevision

Corporation, a concert promoter, “successfully brought a

constitutional claim under 42 [U.S.C.A.] § 1983” because “the

City of Burbank violated Cinevision’s [F]irst [A]mendment rights

by disapproving Cinevision’s proposed concerts on the basis of

the content of the performer’s expression and other arbitrary

8
factors.” Cinevision Corp. v. Burbank, 745 F.2d 560, 581 (9th

Cir. 1984), cert. denied, 471 U.S. 1054, 105 S. Ct. 2115, 85 L.

Ed. 2d 480 (1985). In Bung’s Bar & Grille, Inc. v. Twp. Council

of Florence, the court recognized a deprivation claim rooted in

the government’s assessments against the plaintiffs’ property,

in violation of the Fourteenth Amendment to the Federal

Constitution and of Article I, Paragraph 1 of the New Jersey

Constitution. 206 N.J. Super. 432, 457 (Law Div. 1985).

Police use of excessive force has been held in several

cases to constitute a deprivation of the plaintiffs’ Fourth

Amendment rights under 42 U.S.C.A. § 1983. See, e.g., Thomas v.

Frederick, 766 F. Supp. 540, 553-55 (W.D. La. 1991) (finding

that police officer deprived plaintiff of her Fourth Amendment

rights by violently throwing her against his car, causing her to

suffer severe back injury, when plaintiff “was unarmed and made

no aggressive move which would have justified [the officer’s]

actions”); Mikulec v. Town of Cheektowage, 909 F. Supp. 2d 214,

219-21 (W.D.N.Y. 2012) (denying defendant police officers’

motion for summary judgment on plaintiff’s Fourth Amendment

excessive force claim because officers apparently “smashed”

plaintiff’s face into patrol car and violently threw him into

patrol car while plaintiff was handcuffed); M.D. v. Smith, 504

F. Supp. 2d 1238, 1248-49, 1254 (M.D. Ala. 2007) (denying

defendant police officer’s motion for summary judgment on

9
plaintiff’s Fourth Amendment excessive force claim because

officer slammed plaintiff’s head “into the car with force

sufficient to cause [plaintiff’s] head to dent the car” when

plaintiff’s conduct did not suggest that he posed any risk to

officer). In each of these settings, the plaintiff did not

merely experience delay or confront obstacles as the parties’

legal rights were determined by a court, but was subjected to a

complete denial of that right.

To the majority, the fact that plaintiffs were compelled to

resort to litigation in order to ensure a vote on the repeal of

the challenged ordinance means that they suffered a deprivation

of their rights under the Faulkner Act. Ante at ___ (slip op.

at 40-43). The majority relies on cases in which a governmental

entity indisputably –- in some cases admittedly –- violated a

statute, ordinance or constitutional provision in seeking to bar

the plaintiffs’ activity. In Lippoldt v. Cole, the defendant

City of Wichita conceded that it had denied the plaintiffs’

application for a parade permit notwithstanding the fact that

its parade ordinance mandated the grant of that permit. 468

F.3d 1204, 1210 (10th Cir. 2006). Similarly, in People Against

Police Violence v. City of Pittsburgh, although the City of

Pittsburgh immediately abandoned its defense of an ordinance

that, among other requirements, compelled individuals seeking to

engage in expressive activity in public forums to prepay the

10
City’s police costs associated with that activity, the City did

not repeal that ordinance or substitute a constitutional

alternative in its stead. 520 F.3d 226, 229 (3d Cir. 2008).

Accordingly, the District Court issued an injunction in

plaintiffs’ favor, which the City did not challenge on appeal.

Id. at 230. The Third Circuit affirmed the District Court’s

holding that plaintiffs were “prevailing parties” under 42

U.S.C.A. § 1988. Id. at 228-29.

In Young v. City of Chicago, the Seventh Circuit addressed

issues stemming from a District Court’s decision to enjoin the

City of Chicago’s ban on all protests within a perimeter around

the site of the 1996 Democratic National Convention. 202 F.3d

1000, 1000-01 (7th Cir. 2000). The City waited until after the

convention was over to seek appellate review, and argued that

since the First Amendment issue was moot, it should not be

liable under 42 U.S.C.A. § 1988 for attorneys’ fees. Ibid. The

Seventh Circuit disagreed, and affirmed the District Court’s

award of fees. Id. at 1000-01.2

2
McQueary v. Conway, 614 F.3d 591 (6th Cir. 2010), cert. denied,
562 U.S. ___, 131 S. Ct. 927, 178 L. Ed. 2d 752 (2011), also
cited by the majority, addresses a different issue not remotely
raised by this case. There, the Sixth Circuit reviewed a
District Court’s denial of attorneys’ fees under 42 U.S.C.A. §
1988 to a member of the Westboro Baptist Church. Id. at 595-96.
The plaintiff had asserted an overbreadth challenge to a state
law barring disturbances within three hundred feet of the site
of a funeral or burial. Ibid. The District Court denied the
fee application, reasoning that the plaintiff’s proposed funeral
11
 Rogers Grp., Inc. v. City of Fayetteville involved a due

process and unconstitutional taking without just compensation

challenge to an ordinance that placed limitations on the

operations of rock quarries “near” the city limits, as well as

within those limits, thus constituting an effort by the city to

regulate activities outside of its boundaries. 683 F.3d 903,

904-05 (8th Cir. 2012). The constitutional challenge prompted

the City of Fayetteville to repeal the portion of its ordinance

that attempted to regulate rock quarries located beyond its

borders. Id. at 906. The Eighth Circuit held that the

plaintiff was a “prevailing party” for purposes of 42 U.S.C.A. §

1988, notwithstanding the City’s abandonment of its defense of

the challenged ordinance. Id. at 911-13.

The single case cited by the majority that addresses an

election, Diffenderfer v. Gomez-Colon, 587 F.3d 445 (1st Cir.

2009), arose from circumstances very different from the setting

of this case. There, the plaintiffs challenged the decision

made by the State Election Commission of the Commonwealth of

Puerto Rico that the ballots for the 2008 election in the

Commonwealth -- including the elaborate instructions on how to

picketing would violate other provisions of Kentucky law that he
declined to challenge. Id. at 596. The Sixth Circuit rejected
that conclusion, noting that the District Court had improperly
assumed that the plaintiff would violate unchallenged provisions
of state law, and remanded the matter for a determination of
whether the plaintiff was a “prevailing party” under 42 U.S.C.A.
§ 1988. Id. at 602-05.
12
use the “complex and difficult to understand” ballot -- would be

printed in Spanish only. Diffenderfer v. Gomez-Colon, 587 F.

Supp. 2d 338, 341-42, 349 (D.P.R. 2008). The District Court

certified a class of Commonwealth residents who spoke only

English, and held that Spanish-only ballots contravened the

Voting Rights Act, the Equal Protection Clause and the First

Amendment. Id. at 342, 345-50. The District Court later

awarded counsel fees to the plaintiffs. Diffenderfer v. Gomez-

Colon, 606 F. Supp. 2d 222, 230-31 (D.P.R. 2009).

While that award was on appeal, the Commonwealth’s

legislature enacted a statute mandating bilingual ballots.

Diffenderfer, supra, 587 F.3d at 450. The First Circuit vacated

the underlying judgment as moot, but affirmed the award of

counsel fees. Id. at 451, 455. It held that the action by the

legislature was “a circumstance not attributable to the

Commission as an individual administrative entity.” Id. at 452.

It also noted that corrective legislation “is generally

considered an intervening, independent event and not voluntary

action, particularly when the governmental entity taking the

appeal, as here, is not part of the legislative branch.” Ibid.

The First Circuit’s reasoning is simply irrelevant to this case.

Here, defendants took a defensible position on the procedure to

be followed upon receipt of a defective Faulkner Act petition,

13
and plaintiffs achieved their objective in the following

election.

In short, the majority cites no federal or New Jersey case

law that suggests, let alone holds, that when a governmental

authority asserts a viable legal position on an unsettled

question of law, and that question is resolved in the

plaintiff’s favor in time for the plaintiff to exercise the

disputed right, the defendant’s action amounts to a deprivation.

By the plain meaning of the term as it appears in N.J.S.A. 10:6-

2(c), and in the many illustrations provided by case law

construing its federal counterpart, a deprivation of the

plaintiff’s constitutional right is rooted in that plaintiff’s

loss of the ability to exercise that right.

In contrast to 42 U.S.C.A. § 1983, the NJCRA specifically

addresses claims premised upon the defendant’s interference or

attempted interference with the plaintiff’s “exercise or

enjoyment of” his or her “substantive rights, privileges or

immunities.” N.J.S.A. 10:6-2(c). In my view, when a defendant

has taken a position that requires a plaintiff to spend time,

effort and resources in order to resolve a novel legal question,

the defendant has -- at most -- interfered with or attempted to

interfere with the plaintiff’s rights. If, as the majority

suggests, a plaintiff who successfully litigates a previously

unsettled legal issue has been “deprived” of a right by virtue

14
of nothing more than the necessity of filing suit, I can discern

no meaningful distinction between the provisions of the statute

that address deprivation, on the one hand, and interference and

attempted interference, on the other. If the Legislature had

contemplated a statute that operates in the way that the

majority construes it, it would not have limited the reach of

the NJCRA as it did. It would have authorized an award of

attorneys’ fees to any plaintiff who has successfully litigated

a dispute over an alleged governmental interference with a

recognized legal right.

Instead, the Legislature carefully distinguished between an

interference or attempted interference with a substantive right

-- which warrants no NJCRA remedy unless achieved “by threats,

intimidation or coercion” -- and a deprivation of such a right.

N.J.S.A. 10:6-2(c); see Ramos v. Flowers, 429 N.J. Super. 13, 21

(App. Div. 2012). That is the line that the Legislature drew,

and it should, in my view, be preserved.

I respectfully submit that the majority applies the NJCRA

beyond its intended parameters when it construes a

municipality’s assertion of a good faith legal position in an

area of unsettled law to be a deprivation of plaintiffs’ civil

rights within the meaning of N.J.S.A. 10:6-2(c). Accordingly, I

would affirm the determination of the Appellate Division in its

15
entirety, and to the extent that the majority reverses that

determination, I respectfully dissent.

JUSTICE LaVECCHIA joins in this opinion.

16
 SUPREME COURT OF NEW JERSEY

NO. A-13/14 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

DANIEL TUMPSON, RUSSELL
HOOVER, ERIC VOLPE, CHERYL
FALLICK and JOEL HORWITZ,

Plaintiffs-Appellants
and Cross-Respondents,

v.

JAMES FARINA, in his capacity
as HOBOKEN CITY CLERK, and
THE CITY OF HOBOKEN,

Defendants-Respondents
and Cross-Appellants,

and

MILE SQUARE TAXPAYER
ASSOCIATION 2009, INC., GINA
DENARDO, individually and on
behalf of all similarly situated
and 611-613, LLC, individually
and on behalf of all similarly situated,

Intervenors-Respondents.

DECIDED July 31, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY Justice Patterson
DISSENTING OPINION BY

AFFIRM IN PART/ CONCUR IN
CHECKLIST REVERSE IN PART/ PART/
REMAND DISSENT IN PART
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) ---------------------- -------------------
TOTALS 4 2

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