MATSIKOUDIS 81. FANCIULLIJ, LLC i 270 Marin Boulevard CUSTOMER SERVICE TEAM lersey City, NI 07302 - . 100119150407 33" 01 ZINE Attorney for Plaintiffs SUPERIOR couR IErsey City Civic Cummillee, COUNTY Josephine Palge, Philomena Scanga CIVIL DIVISION #4 Yvonne Balcer, Rampaul Guyadeen and Viola RIchardson IERSEY Cl'l'l CIVIC COMMITTEE, PHILOMENA SCANGA, YVONNE BALCER., RAMPAUL GUYADEEN SUPERIOR COURT OF NEW JERSEY and RICHARDSON, HUDSON COUNTY Plaintiffs, DOCKET NO: v, VERIFIED CQMELA BARBARA NETCHERT, Hudson County Clerk, STEVEN FULOP, City ufjersey City Mayor, and: THE MUNICIPAL COUNCIL enhe CITY of JERSEY CITY Defendant. Iosephme Paige, Philomena Scanga, Yvonne Balcer, Pat McCarthy and Rampaul Guyadeen (respectively, "Paige." "Scanga," "Halter," "Richardson" and "Guyadeen,"] hereby Complain and allege as follows: AL nous 0 TO ALL 1. is a non-profit organization WIth taxrexempt Status dedicated to research, public education and social welfare advocacy concerning issues reiated to and critical in the city of Jersey City. To this end, extluswe place ofoperation is the City of Jersey City, County ofHudsnn Stan: omen Iersey. 2. Paige is a regislel ed wierwnn reSIdeS at -- city DI Iersey City, County of Hudson. State ofNew )ersey. 3. Seanga is a registered voter and resides at -- City ailersey city, County ofHudsan, State oiNew Jersey. 4. Balcer is a registered voter who resides at --Clty of Jersey City, County ofHudson. State oiNew Jersey. 5. Richardson is a registered voter who resides at City of Jersey City, County at Hudson, State ofNew Iersey. 6. Guyadeen is registered voter who resides 3-- City ol'Jersey City, County ofHudson, State oiNew Jersey. 7. in January 2015, the Municipal Council ofthe City otJersey City [the "City Council"), the City's legislative body, passed a Resolution directing the County Clerk to place a non binding reierendum on the Novemher ballot that sought to "ascertain the puhlic's support" to push hack the City/s regular municipal elections from May to November. The referendum question and interpretative statement contained a number of assertions regarding the purported henefits of such a shirt 7 for instance, it advertised a cost savings and noted the possible elimination otvoter fatigue. 9. Five Jersey City voters filed a lawsuit and successfully removed nearly all language regarding cost savings and other alleged benefits. However, the interpretive statement still stated, "This change would mean that the Municipality would not have to undertake the expense oiiundirig a separate, additional election in May." Moreover, neither the question our the interpretative statement informed voters of the fact that, as a material collateral impact of a shill of the City's regular election from May to November, the City's run-off elections would move ironi June to December. 9 In the November 2015 referendum, the "Yes" vote garnered 514% to the "No" Vote's 47.6%, achieving a slim majority of only 478 votes out of 9,970 votes cast. 10, The City Counrll thus moved forward with an ordinance to formally move the to November, and the ordinanre passed First Reading, 11. A petition committee ofvoters began to collect signatures to reject the ordinance pursuant to 12. After a neWSpaper article appeared and reported that a committee of petitioners was collecting signatures to challenge the ordinance, Jersey City?s Mayor announced that the City Council would abandon the ordinance to move the election (which, again, had already been approved on First Reading]. Instead, the Mayor pr0posed submitting a new question regarding moving Jersey City's election in a binding referendum in November 2016. 13. On January 13, 2016, the City Council considered and adopted Ordinance 15.028, formally titled AMENDING THE CHARTER OF THE CITY OF JERSEY CITY TO CHANGE THE DATE OF THE REGULAR MUNICIPAL ELECTION FROM THE SECOND TUESDAY IN MAY TO THE DATE OF THE GENERAL ELECTION IN NOVEMBER, SUBJECT TO THE APPROVAL OF THE ORDINANCE BY THE VOTERS TO AMEND THE CITY CHARTER BY BINDING [the "Ordinance?). The Ordinance is attached hereto as Exhibit A. 14. The Ordinance cites both the Faulkner Act, and Uniform Nonpartisan Elections Law, 40:45-7, as its enabling authority. 15. The Ordinance directs the Municipal Clerk to submit the following Referendum Question [the ?'Referendum?) to the voters: ?Should the Charter of the City ofJersey City, governed by Mayor-Council Form C, be amended as permitted under that plan, to provide for the holding of its regular municipal elections on the same date of the general election in November, pursuant to 16. On January 13, 2016, at the public hearing on the Second Reading of the Ordinance, Bill Matsikoudis, a founding member of addressed the City Council and raised several concerns. A copy of the Transcript from the January 13, 2016 Council Meeting is attached hereto as Exhibit B. 17. Matsikoudis, inter alia, raised concerns about the City Council?s authority to use a binding Referendum to change the City?s Charter to have a nonpartisan election in November; asserted that Referendum question was misleading and should be changed or include an interpretative statement to indicate that Runoff elections would be moved from June to December; and asked the City Council to confirm that the Ordinance?s intent was not to create partisan elections. [Exhibit at 29-32). 18. The Council President confirmed that the Referendum was not intended to change Jersey City?s election to partisan elections. (Exhibit at 32.) 19. At the request of the Council President, Jersey City?s Corporation Counsel, Jeremy Farrell, stated that the Faulkner Act specifically allowed for nonpartisan elections in November. Matsikoudis and Farrell engaged in a dialogue, where Matsikoudis stated that the Faulkner Act does not contemplate November nonpartisan elections [as the Uniform Nonpartisan Elections Law effectively amended the Faulkner Act to permit November nonpartisan elections), and that, at a minimum, an interpretative statement should be added to inform voters that they would also be voting to move runoff elections from June to December. Farrell resisted, stating that the Faulkner Act prescribes speci?c referendum language, and proscribes adding additional language to a referendum question from that provided in the statute - even though the referendum question as currently constructed does not follow the prescribed statutory language. [Exhibit at 32-35.) 20. At the close of the Public Hearing, City Councilman Richard Boggiano made a motion to amend the Ordinance to add an Interpretative Statement to the Referendum to indicate that the Referendum would impact runoff elections as well. 21. Before voting, Councilwoman Candice Osborne asked for a legal opinion, and Corporation Counsel Farrell reasserted his Opinion that the Faulkner Act prescribes the specific language of the Referendum question and does not provide for an interpretative statement. [Exhibit at 49-50.) 22. Councilwoman Osborne then asked if the Corporation Counsel could research the issue, where the City Council could potentially add an Interpretative Statement at a later date. Councilwoman Diane Coleman asked the Corporation Counsel, ?Are you going to go and do that and bring information back to us so that it would make it possible for us to add that statement if possible?? Council President Rolando Lavarro stated to the Corporation Counsel: "We ask you to look into it.? (Exhibit at 49 [Osborne?s query), 51 (Coleman and Lavarro question and demand)]. 23. The City Council voted against the proposed Amendment to add an Interpretative Statement, with several Council members indicating that they were only doing so because they were waiting to hear whether they had legal authority to add an Interpretive Statement. For instance: Councilwoman Coleman stated, "No, not at this time. With the promise that the Corporation Counsel that is going to put the statutory in place, so we can see what the question is going to be." Similarly, Councilman Daniel Rivera explained, will vote no, but we need that information [Exhibit at 54-55.) 24. Before the vote the Corporation Counsel stated ?My advice to this Council is to follow the express language of the Statute, which results in the language put before you in the document.? (Exhibit at 54.] However, as indicated supra, the Corporation Counsel?s advice to the City Council was contradictory on its own terms: The language in the Referendum Question the City Council considered and approved did not follow the express language of the Faulkner Act. 25. Moreover, upon information and belief, the Corporation Counsel has never provided the requested Opinion on whether an Interpretative Statement could be added. 26. On February 3, 2016, Matsikoudis followed up with the City by emailing the City Council and the Corporation Counsel a letter [the ?Matsikoudis Letter?). A copy of the Matsikoudis Letter is attached hereto as Exhibit C. In the Matsikoudis Letter, Matsikoudis made the case that, not only is it permissible to add an interpretative statement to the Referendum (explaining that shifting the City?s elections from May to November would move its runoff elections from June to December], it is mandated in light of the circumstances, and questioned whether the Faulkner Act even allows for a binding referendum to move a nonpartisan election from May to November, as the Ordinance purports to do. 27. City Council President Lavarro reSponded to the Matsikoudis Letter a few hours later. In full, President Lavarro?s response reads: Bill. Thank you for your letter. The City Council is looking into the issues you raised as discussed at the January 13 Council meeting. I'm certain Corporation Counsel and the City Council will give your input every consideration. Thank you again for your input. Rolando 28. The City Council did not discuss this issue again, until Matsikoudis broached the topic over six months later. Matsikoudis never received any further information. 29. On August 17, 2016, Matsikoudis attended the City Council meeting and spoke during its public speaking portion. Matsikoudis asked the City Council about and reminded the City Council of its promise to consider adding more specific language regarding the runoff election being moved from June to December. it appeared that, notwithstanding the previous promise that the issues would be researched, nothing was done. At the direction of the City Council President, the Corporation Counsel again agreed to research the issue of whether an Interpretive Statement would be permitted. 30. Upon information and belief, ballots for the November 8, 2016 election will be printed on or about September 16, 2016. INIUNCTIVE RELIEF [By Plaintiffs against Defendants Netchert and Jersey City Council and Mayor] 31. Plaintiffs repeat and reallege the allegations of the preceding paragraphs as if fully set forth herein. 32. Pursuant to New Jersey law, referendum questions and accompanying interpretive statements posed pursuant to 19:37-1 may not be vague, misleading or unfairly worded, and the Referendum Question and Interpretive Statement egregiously violate these requirements. 33. As it is currently drafted, the appearance of the Referendum Question on the ballot for the November general election will cause the Plaintiffs and the general public to suffer irreparable harm for which the Plaintiff and public have no adequate remedy at law. 34. The Referendum unlawfully conflates the provisions Faulkner Act, and Uniform Nonpartisan Elections Law, 40:45-7, thereby confusing voters as to whether they are voting to implement partisan elections or whether they are simply being asked to vote on changing the nonpartisan election schedule from May to November, which would also move runoff elections from June to December. WHEREFORE, based upon the foregoing allegations, Plaintiff respectfully requests this court: to grant the following preliminary and permanent injunctive relief: i. Finding that the Referendum illegally con?ates the Faulkner Act and the Uniform Nonpartisan Elections Law, and prohibiting the referendum from being placed on the ballot in its current form. ii. In the alternative, enjoining Defendants and the Municipal Council of the City of Jersey City to redraft the Referendum Question to read as stated below and to add an Interpretive Statement as stated below, and enjoining Defendant Netchert and the Office of the Hudson County Clerk from printing, publishing, preparing or otherwise producing any ballots including the Referendum Question and Interpretive Statement until any and all deletions, amendments and changes ordered by this Court have been made: Referendum Question "Should the Charter of the City of Jersey City, governed by Mayor-Council Form C, be amended as permitted under that plan, to provide for the holding of its regular municipal elections on the same date of the general election in November, pamuant?EWwith anv required runoff electionfsl occurring in December?" Interpretive Statement if the voters approve this referendum question. beginning with the City election now scheduled to take place on the second Tuesday in May. 2017. City elections will remain nonpartisan. but shall be held on the first Tuesday following a Mondav in November. that dav being the same day as the general election. In the event that a runoff election is required by law, it shall be held at a Special election on the subsequent Tuesday next after the first Mondav in December. Additionallv. if the voters approve this referendum. the terms of anv person in office on the date of the adontion of this ordinance. including the Mayor and the City Council, shall be extended until the City holds its organization meeting. which shall occur no later than Ianuary 7 in the year following the November election. Respectfully submitted, i . Matsikoudis MATSIKOUDIS 8; FANCIULLO Attorneys for Plaintiff DESIGNATION 0F TRIAL COUNSEL Pursuant to R. 4425-4, William Matsikoudis, Esq. and Derek Fanciullo, Esq. of the Law Firm of Matsikoudis Fanciullo, LLC are hereby designated as trial counsel for the Plaintiffs. MATSIKOUDIS FANCIULLO AHW Dated: September 1, 2016 CERTIFICATION OF NO OTHER ACTIONS Pursuant to R. 4:5-1, it is hereby stated that the matter in controversy is not the subject of any other action pending in any other court or of a pending arbitration proceeding to the best of my knowledge and belief. Also, to the best of my knowledge and belief, no other action or arbitration proceeding is contemplated. Further, other than the parties set forth in this pleading, I know of no other parties that should be joined in the above action. In addition, I recognize the continuing obligation ofeach part to file and serve on all parties and the court an amended certification if there is a change in the facts stated in this original certification. MATSIKOUDIS 8; FANCIULLO Attorneys for Plaintiffs Dated: September 1, 2016 VERIFICATION I, Iosephine Paige, of full age, hereby certify as follows: 1. I am 3 Plaintiff in the within action and I have personal knowledge ofthe facts and allegations it contains. 2. I have read the Veri?ed Complaint in this action, and the facts alleged are true to the best of my knowledge, information and belief. 3. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me is willfully false, I am subject to punishment. 5 phineP ige Dated: August 30, 2016 11 VERIFICATION I, Rampal Guyadenn, of full age, hereby certify as follows: 13. I am a Plaintiff in the within action and I have personal knowledge of the facts and allegations it contains. 14. have read the Verified Complaint in this action, and the facts alleged are true to the best ofmy knowledge, information and belief. 15. I certify that the foregoing statements made by me are true. I am aware that if any ofthe foregoing statements made by me is willfully false, I am subject to punishment. Rampa yadenn 15 VERIFICATION l, Yvonne Balcer, of full age, hereby certify as follows: 7. I am a Plaintiff in the within action and I have personal knowledge of the facts and allegations it contains. 8. I have read the Verified Complaint in this action, and the facts alleged are true to the best of my knowledge, information and belief. 9. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me is willfully false, I am subject to punishmentYVI. 11 Balcer Dated: Augusf>32 0 16 13 VERIFIQATNN I, Philomena Scanga, of full age, hereby certify as follows: 4. I am a Plaintiff in the within action and have personal knowledge of the facts and allegations it contains. 5. I have read the Verified Complaint in this action, and the facts alleged are true to the best of my knowledge, information and belief. 6. I certify that the foregoing statements made by me are true. i am aware that if any of the foregoing statements made by me is willfully false, I am subject to punishment. Philomena Scanga Dated: August 30, 2016 11 VERIFICATION I, Philomena Scanga, of full age, hereby certify as follows: 16. I am a Plaintiff in the within action and I have personal knowledge ofthe facts and allegations it contains. 17. I have read the Verified Complaint in this action, and the facts alleged are true to the best of my knowledge, information and belief. 18. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me is willfully false, I am subject to punishment. M-.. 533334" Viola Richardson Dated: August 31, 2016 16 MATSIKOUDIS 8; FANCIULLO, LLC 270 Marin Boulevard Jersey City, 07302 T: [201) 915-0407 F: (201] 536-2026 Attorney for Plaintiffs Iersey City Civic Committee, ]osephine Paige, Philomena Scanga Yvonne Balcer, Rampaul Guyadeen and Pat McCarthy IERSEY CITY CIVIC COMMITTEE, IOSEPINE PAIGE, PHILOMENA SCANGA, YVONNE BALCER., RAMPAUL GUYADEEN SUPERIOR COURT OF NEW IERSEY, and VIOLA RICHARDSON, LAW DIVISION, HUDSON COUNTY Plaintiffs, DOCKET NO: V. CIVIL ACTION BARBARA Hudson County Clerk, STEVEN FULOP, City oflersey City Mayor, and: THE MUNICIPAL COUNCIL ofthe CITY of JERSEY CITY Defendants. BRIEF OF PLAINTIFFS IN SUPPORT OF RELIEF SOUGHT IN ORDER TO SHOW CAUSE AND VERIFIED COMPLAINT MATSIKOUDIS FANCIULLO, LLC Attorneys for Plaintiffs William C. Matsikoudis, Esq. Derek S. Fanciullo, Esq. 270 Main Street Jersey City, 07302 T: 201?915-0407 Email: 0n the Brief: William C. Matsikoudis, Esq. Derek S. Fanciullo, Esq. Preliminagy Statement The Jersey City Mayor and Council have created a unlawful binding referendum to move the City?s nonpartisan elections from May to November by cherry-picking elements from the Faulkner Act [m and New Jersey?s Uniform Nonpartisan Elections Law [m pasting them together, and hoping they pass muster. However, this mix-and-match approach contravenes express legislative language. Per the Faulkner Act, a municipality may only employ a binding referendum to fundamentally change its elections - from nonpartisan in May to partisan in November. Conversely, under the Uniform Nonpartisan Elections Law, a municipality seeking to simply move its nonpartisan election to November must do so exclusively by ordinance.1 in sum, neither the Faulkner Act nor Uniform Nonpartisan Elections Law allows the City to keep its elections nonpartisan and simply move them to November via referendum even though this is exactly what the City purports to do. Moreover, as currently drafted, the Referendum is fatally vague and misleading. Even assuming, arguendo, that the City may legally pose the Referendum as it is presently constructed, since the Referendum draws authority from two discrete statutes, it is hopelessly unclear whether it asks voters to abandon nonpartisan elections in favor of partisan elections [that would not have runoffs, but party primaries]. The CiW?s Frankenstein question is at best unacceptably ambiguous, and must be revised to expressly state that Jersey City elections will 1 The ordinance calling for such a shift would be subject to rejection by petition of voters pursuant to the provisions of a process which was underway when the City had considered passing an Ordinance to move its elections to May in December of 2015, although the City never adopted the Ordinance. remain nonpartisan, (ii) guarantee runoffs will remain a part of the City?s election process and be held in December (if the Referendum passes], and advise the electorate that the Mayor and City Council will, by law, have their terms extended if the Referendum is approved. Of course, this court may ?redline? the Referendum only so much: Given the aforesaid issues, it may well be that the Referendum is unsalvageable, and that the City Council should be compelled to redraft a referendum question that is in line with the law. Statement of Facts in January 2015, the Municipal Council of the City oflersey City (the ?City Council?), the City?s legislative body, passed a Resolution (?Resolution directing the County Clerk to place a non?binding referendum on the November ballot that sought to ?ascertain the public?s support" to push back the City?s regular municipal elections from May to November. (Pl. Compl, at 1T 7.) Resolution #l?s referendum question and interpretative statement contained a number of assertions regarding the purported benefits of such a shift - for instance, it advertised a cost savings and noted the possible elimination of voter fatigue. k1. Five Jersey City voters filed a lawsuit and successfully removed nearly all language regarding cost savings and other alleged benefits. at 8. However, the interpretive statement still stated, ?This change would mean that the Municipality would not have to undertake the expense of funding a separate, additional election in May.? Moreover, neither the question nor the interpretative statement informed voters of the fact that, as a material collateral impact of a shift of the City?s regular election from May to November, the City?s run?off elections would move from June to December. I_d. In the November 2015 referendum, the ?Yes? vote garnered 52.4% to the ?No? Vote?s 47.6%, achieving a slim majority of only 478 votes out of 9,970 votes cast. at 9. The City Council thus moved forward with an ordinance to formally move the City?s regular election to November, and the ordinance passed First Reading. at 10. Consequently, a petition committee of voters began to collect signatures to reject the ordinance pursuant to I_d_ at TI 11. The statute allows voters to trigger a protest referendum of any such ordinance upon filing of a petition with the signatures of legal voters totaling 15 percent of the amount of votes at the last election when the General Assembly was on the ballot, and if the City Council refuses to retract the Ordinance, force a binding election on the ordinance. The petition committee?s actions spurred a response from the City. After a newspaper article appeared and reported that a committee of petitioners was collecting signatures to challenge the ordinance, Jersey City?s Mayor announced that the City Council would abandon the ordinance to move the election (which, again, had already been approved on First Reading). at 12. Instead, the Mayor proposed submitting a new question regarding moving Jersey City?s election in a binding referendum in November 2016. E. On January 13, 2016, the City Council considered and adopted Ordinance 15.028, formally titled AMENDING THE CHARTER OF THE CITY OF JERSEY CITY TO CHANGE THE DATE OF THE REGULAR MUNICIPAL ELECTION FROM THE SECOND TUESDAY IN MAY TO THE DATE OF THE GENERAL ELECTION IN NOVEMBER, SUBJECT TO THE APPROVAL OF THE ORDINANCE BY THE VOTERS TO AMEND THE CITY CHARTER BY BINDING (the ?Ordinance?). at 1T 13.The Ordinance cites to both the Faulkner Act, and Uniform Nonpartisan Elections Law, 40:45-7. at 14. The Ordinance directs the Municipal Clerk to submit the following Referendum Question (the ?Referendum?] to the voters: I ?Should the Charter of the City of Jersey City, governed by Mayor?Council Form C, be amended as permitted under that plan, to provide for the holding of its regular municipal elections on the same date of the general election in November, pursuant to 1d at 1T 15. On January 13, 2016, at the public hearing on the Second Reading of the Ordinance, Bill Matsikoudis, a founding member of Plaintiff Jersey City Civic Committee, addressed the City Council and raised several concerns. at 1T 16. Matsikoudis, inter alia, raised concerns about the City Council?s authority to use a binding Referendum to change the City?s Charter to have a nonpartisan election in November; asserted that Referendum question was misleading and should be changed or include an interpretative statement to indicate that Runoff elections would be moved from June to December; and asked the City Council to confirm that the Ordinance?s intent was not to create partisan elections. at 17. The Council President confirmed that the Referendum was not intended to change lersev City?s election to partisan elections. at 1T 18. At the request of the Council President, Jersey City?s Corporation Counsel, Jeremy Farrell, stated that the Faulkner Act specifically allowed for nonpartisan elections in November. at 1T 19. Matsikoudis and Farrell engaged in a dialogue, where Matsikoudis stated that the Faulkner Act does not contemplate November nonpartisan elections [as the Uniform Nonpartisan Elections Law effectively amended the Faulkner Act to permit November nonpartisan elections], and that, at a minimum, an interpretative statement should be added to inform voters that they would also be voting to move runoff elections from June to December. Farrell resisted, stating that the Faulkner Act prescribes specific referendum language, and proscribes adding additional language to a referendum question from that provided in the statute - even though the referendum question as currently constructed does not follow the prescribed statutory language. 1d. At the close of the Public Hearing, City Councilman Richard Boggiano made a motion to amend the Ordinance to add an Interpretative Statement to the Referendum to indicate that the Referendum would impact runoff elections as well. at 20. Before voting, Councilwoman Candice Osborne asked for a legal opinion, and Corporation Counsel Farrell reasserted his opinion that the Faulkner Act prescribes the specific language of the Referendum question and does not provide for an interpretative statement. 1d at 1T 21. Councilwoman Osborne then asked if the Corporation Counsel could research the issue, where the City Council could potentially add an interpretative Statement at a later date. id at 22. Councilwoman Diane Coleman asked the Corporation Counsel, ?Are you going to go and do that and bring information back to us so that it would make it possible for us to add that statement if possible?? Council President Rolando Lavarro stated to the Corporation Counsel: ?We ask you to look into it.? 1d. The City Council voted against the proposed Amendment to add an Interpretative Statement, with several Council members indicating that they were only doing so because they were waiting to hear whether they had legal authority to add an Interpretive Statement. I_d_ at 1] 23. For instance: Councilwoman Coleman stated, ?No, not at this time. With the promise that the Corporation Counsel that is going to put the statutory in place, so we can see what the question is going to be.? Similarly, Councilman Daniel Rivera explained, will vote no, but we need that information 5. Before the vote, the Corporation Counsel stated ?My advice to this Council is to follow the express language of the Statute, which results in the language put before you in the document.? Id at 1T 24. However, as indicated supra, the Corporation Counsel?s advice to the City Council was contradictory on its own terms: The language in the Referendum Question the City Council considered and approved not follow the express language of the Faulkner Act. Id. Moreover, upon information and belief, the Corporation Counsel has never provided the requested opinion on whether an Interpretative Statement could be added. m. 011 February 3, 2016, Matsikoudis followed up with the City by emailing the City Council and the Corporation Counsel a letter (the ?Matsikoudis Letter?). at 26. In the Matsikoudis Letter, Matsikoudis made the case that, not only is it permissible to add an interpretative statement to the Referendum (explaining that shifting the City?s elections from May to November would move its runoff elections from June to December], it is mandated in light of the circumstances, and questioned whether the Faulkner Act even allows for a binding referendum to move a nonpartisan election from May to November, as the Ordinance purports to do. m. City Council President Lavarro responded to the Matsikoudis Letter a few hours later. Id at if 27. In full, President Lavarro?s response reads: Bill, Thank you for your letter. The City Council is looking into the issues you raised as discussed at the January 13 Council meeting. I'm certain Corporation Counsel and the City Council will give your input every consideration. Thank you again for your input. Rolando However, the City Council did not discuss this issue again, until Matsikoudis broached the topic over six months later. Matsikoudis never received any further information. Id at 28. On August 17, 2016, Matsikoudis attended the City Council meeting and spoke during its public speaking portion. id at 1T 29. Matsikoudis asked the City Council about and reminded the City Council of its promise to consider adding more speci?c language regarding the runoff election being moved from June to December. It appeared that, notwithstanding the previous promise that the issues would be researched, nothing was done. id. At the direction of the City Council President, the Corporation Counsel again agreed to research the issue of whether an Interpretive Statement would be permitted. Upon information and belief, ballots for the November 8, 2016 election will be printed on or about September 16, 2016. at 30. Argument The Referendum is unlawful both on its face and in its execution. Facially, it represents an impermissible Frankensteinian hodgepodge of conveniently chosen elements of two discrete statutes. Not surprisingly, given the incongruency in its origin, the Referendum is also impermissibly vague where even the most well? apprised voters will not be able to decipher its meaning. Given this, the court should prohibit the Referendum from appearing on ballots until the Mayor and City Council redraft it. Plaintiffs are Entitled to lniunctive Relief As an initial matter, this court should grant Plaintiffs the provisional relief they seek namely, compelling Defendant Netchert to delay printing general election ballots until the Referendum Question is amended and an interpretive statement is added to it or, at least, until this matter?s substance is adjudicated. In determining whether to grant a preliminary injunction, a trial court must consider whether an injunction is ?necessary to prevent irreparable harm?; whether ?the legal right underlying [the applicant's] claim is unsettled?; whether the applicant has made ?a preliminary showing of a reasonable probability of ultimate success on the merits?; and ?the relative hardship to the parties in granting or denying [injunctive] relief.? Crowe V. De Gioia. 90 NJ. 126, 132?34 (NJ. 1982). Here, temporary relief is absolutely necessary to prevent irreparable harm: If Defendant Netchert prints ballots during the pendency of this case, and this court decides the Referendum question requires either amendments or the addition of an interpretive statement, those ballots will need to be reprinted and County resources will have been frivolously wasted. Second, as Plaintiffs will demonstrate infra, the law underlying their claim is well settled: Indeed, at instant controversy?s core is express statutory language. Third, pursuant to the arguments they articulate infra, Plaintiffs undoubtedly enjoy a strong likelihood of ?ultimate success on the merits.? Finally, the balance of relative hardships tips decidedly in favor of the Plaintiffs: While granting the restraint Plaintiffs seek may only delay a first?run of ballot printing by a couple of days, if invalid ballots are printed before this court reaches its decision, and valid ballots must be essentially reprinted, or voters will be disenfranchised by being forced to vote on an unlawful referendum. Additionally, it is very likely granting the restraint Plaintiffs seek will have absolutely no adverse impact on any Defendant: Upon information and belief, ballots cannot be printed for at least 16 days. Given all this, granting Plaintiffs? request for provisional relief is clearly warranted. The Referendum is an Unlawful Conflation of the Faulkner Act and Uniform Nonpartisan Election Law In the instant context, this court?s exclusive role "is to determine and effectuate the Legislature?s intent.? McGovern v. Rutgers. 211 NJ. 94, 108 (NJ. 2012][citing Bosland v. Warnock Dodge, Inc., 197 543, 553 (NJ. 2009][citing D?Annunzio v. Prudential Ins. Co. of Am, 192 NJ. 110, 119 (NJ. 2007])]. To perform this sole function, the court must ?look first to the plain language of the statute[s], seeking further guidance only to the extent that the Legislature?s intent cannot be derived from the words it has chosen.? [quoting Pizzullo v. Mfrs. Ins. Co., 196 NJ. 251, 264 (NJ. 2008][internal quotations omitted)]. As the New Jersey Supreme Court has oft directed, looking at that language, [courts must] give it its ordinary meaning. Q. Where, as here, the language of statutes ?is clear, [the court?s] task is to apply that language to the situation that confronts Id [citing State v. Shelley, 205 NJ. 320, 323 (NJ. 2011)[citing State v. DA, 191 NJ. 158, 164 (NJ. 2007]). This said, even where a statute?s express terms are ambiguous, courts are not Without recourse: They simply "look to extrinsic sources, including the legislative history, to determine the intent of the Legislature.? m. As intimated above, the instantly?controlling legislative language cannot be any clearer and the City?s efforts to conflate two discrete, disparate statutory commands must be rejected. Jersey City is governed by the Mayor?Council Form of Government under the Optional Municipal Charters Law of 1950 commonly known as the ?Faulkner Act,? As will be adduced infra, the Faulkner Act exclusively permits municipalities to have nonpartisan elections in May or partisan elections in November. Specifically, the Faulkner Act overtly dictates: ?Any municipality adopting a mayor?council plan of government shall provide in its charter that the mayor and council shall be elected by the voters of the municipality either: a. At a regular municipal election held on the second Tuesday in May in the years in which municipal officers are to be elected, in which case the term of office of the mayor and council members shall begin on July 1 next following their election; or b. At the general election held on the first Tuesday after the first Monday in November or at such other time as may be provided by law for holding general elections, in which case the term of office of the mayor and council members shall begin on January 1 next following their election. 1d [emphasis added). Furthermore, the Faulkner Act expressly permits a municipality to submit a referendum to voters to allow voters to decide whether they want to elect their City Council and Mayor by a regular election in May or a general election in November. Finally, the Faulkner Act prescribes the specific language a municipality must use to put this question to its people wherein it again draws the distinction between holding regular elections in May, and general elections in November. in simple terms, the Legislature?s use in the Faulkner Act of two different terms ?regular? and ?general? to describe 10 elections is telling. It must be presumed that the Legislature?s ?decision to include particular language in one section of the statute but omit [or alter] it in another section was intentional.? State v. Caratini 2015 WL 5009646 (NJ. Super. App. Div. 2015)[citing N.l. Dept. of Children Families. 213 1 20-21 2013)]; see Board of Ed. of City of Hackensack v. City of Hackensack. 63 N.].Super. 560, 569 Super. App. Div. 1960) (?legislative language must not be found to be inoperative, super?uous or meaningless?). In simple terms, there must thus be some difference between ?regular? and ?general? elections, or the Legislature would not have felt compelled to use both terms in the same statute. While the Faulkner Act hints at the distinction between ?regular? and ?general? elections, the Uniform Nonpartisan Election Law affords it glaring relief. As it was originally drafted, the Uniform Nonpartisan Election Law also only permitted elections to be held in May. However, the Uniform Nonpartisan Elections Law was specifically amended in 2011 to allow for ?Leg1_il_a?? municipal elections to be held November concurrently with ?general? elections. 40:45?7; 40:45- 7.1. The corresponding Assembly Statement explicitly explains the difference between the two elections and how the law operates: ?Under current law, regular municipal elections, which are nonpartisan, are held on the second Tuesday in May. This committee substitute, as amended, would allow any municipality that holds regular municipal elections to choose, by ordinance, to hold municipal elections on the day of the general election. held on the Tuesday after the first Monday in November.? Assembly Bill 315, 2009. Statement. [emphasis added].2 2 Were the Uniform Nonpartisan Election Law?s express language and Bill Statement not clear enough, when pressed by the reaction from citizen?s groups [who thought moving nonpartisan elections to November should be achieved by referendum alone], the Chief of Staff to the Uniform Nonpartisan Election Law?s sponsor Patrick Diegnan), asserted the ordinance process would be "just as open? as a referendum, and stated: ?Any citizen that?s concerned about it 11 In one fell swoop, the Uniform Nonpartisan Elections Law thus, expressly defines ?regular? municipal elections as nonpartisan (and, by converse implication, ?general? elections as partisan], and [ii] establishes that nonpartisan. regular elections may only be moved from May to November [so as to be held concurrently with partisan, general elections] by ordinance. In sum, then: - The Faulkner Act: for voters to select via referendum whether they want to elect their Mayor and City Council in May or November, but, does not allow ?regular, non-partisan? elections to be held in November, or ?general, partisan? elections to be held in May. Meanwhile, the Uniform Nonpartisan Elections Law: allows for ?regular, nonpartisan? elections to be held concurrently with ?general, partisan" elections in November, but does not allow the City to so shift its elections via referendum. However, the City has unlawfully merged these statutes: It has impermissibly put a binding referendum question to voters, asking them to decide whether the City should hold its ?regular, nonpartisan? elections in November, together with ?general, partisan? contests. Indeed, the City?s referendum question effectively attempts to amend the Faulkner Act by superimposing the word ?regular? over the word ?general? in the Faulkner Act?s specifically?tailored referendum language: has the opportunity to voice their opinion? to council leaders who might be considering an ordinance to move an election. Jersey City Independent Website, Will Iersey City Make the Move to November Elections?, tat-tr}: if 1f) 1 inevembeneiectionsf [last visited August 30, 2016]. 12 Should the Charter of the City of Jersey City, governed by Mayor-Council Form C, be amended as permitted under that plan, to provide for the holding of its regular municipal elections on the same date of the general election in November, pursuant to Of course, all of this is patently illegal: The City may not override the Legislature, and, as its Frankenstein question fails to accord with either the plain language or express legislative intent of the Faulkner Act or the Uniform Nonpartisan Election Law, it may not be placed on a ballot as presently drafted. While the Ordinance references the Uniform Nonpartisan Election Law, it seems to be based upon the premise that the Faulkner independently provides municipalities like Jersey City the right to hold a regular nonpartisan) election in November. Indeed, perhaps the entire Ordinance rests upon whether an assertion in a clause in the preamble is true or false: WHEREAS, pursuant to the Faulkner Act, M4069A-251, a municipality may amend its Charter to change the time of its regular municipal elections from May to November as an alternative permitted under the Mayor?Council Form of Government As set forth supra, does not allow a municipality to change its regular nonpartisan election) from May to November, and provides the below option for municipalities looking to present a referendum to voters: ?the holding of regular municipal elections in May;? ?the holding of general elections in November;? Accordingly, the entire basis upon which this ordinance is founded is false and unlawful. Therefore, the Court should not allow the Referendum as currently drafted to appear on the ballot. 13 The Referendum is Impermissiblv Vague Even were the court to somehow afford the City the authority to override the Legislature and conflate the two discrete laws at the Referendum?s core, the resultant question is too vague and ambiguous to stand. In New Jersey again, assuming, arguendo, the Frankensteinian Referendum is even philosophically legal - the ?right to a referendum? is still exclusively statutory. In this context, per New Jersey statute, every ?public question voted upon at an election shall be presented in simple language that can be easily understood by the voter. The printed phrasing of said question shall clearly set forth the true purpose of the matter being voted upon.? 19:3-6; City of Hackensack. 63 N.].Super. at 570..3 As this court has ruled, when a referendum is ?unclear or vague,? a municipality must include in the referendum an explanatory interpretive statement. Town of Harrison Bd. 0f Educ. v. Netchert 439 N.].Super. 164, 184 (NJ. Super. Law Div. 2014]. As a matter of both law and common sense, both referendum questions and their accompanying interpretive statements must be ?informative? and ?fair.? Camden County Rd. 0f Chosen Freeholders v. Keating, 193 N.].Super. 100, 110 Super. Law Div. 1983]; Gormley v. Lan, 181 N.].Super. 7, 13-14 Super. App. Div. 1981]; City of N. Wildwood v. N. Wildwood Taxpayers' Ass'n. 338 Super. 155, 165 Sup. Ch. Div. 2000). If information material to a voter?s decision is omitted from a referendum question and interpretive statement, the question and statement are improper or, at the very least, must be amended to re?ect the ?true purpose? ofthe 3The same statute and similar language governs the validity of ?accompanying interpretive statements.? 19:36 14 matter being voted upon. See Board of Chosen Freeholders of County of Morris v. gate, 159 565, 582-83 1999)[n0ting that, if referendum had intended to shift capital costs of constructing judicial facilities to the state, it would have specifically conveyed this concept to voters either in the question or interpretive statement, and, as it did not, such costs were not shifted to the state). Against this backdrop, as drafted, the Referendum is inesCapably misleading and vague. Simply, as set forth supra, the Referendum deviates from the Faulkner Act?s prescribed referendum language. Consequently, even a voter well-steeped in the nuances of and differences between the Faulkner Act and Uniform Nonpartisan Elections Law would be disenfranchised as such a voter would know that the City may only transform its elections from nonpartisan t0 partisan via referendum [as explained supra], and would thus only be able conclude that, as drafted, the Referendum asks voters to abandon nonpartisan elections in exchange - for partisan elections. Once inside the voting booth, a voter would, inter alia, be forced to ask and consider: Is the City going to have primaries? Will there be runoff elections? 0 Will candidates now run as Democrats and Republicans? What will happen with the terms of the currently serving Council members and the Mayor? Of course, for less-attuned voters, the Referendum is still confusing and misleading. In short, the Referendum does not presently include any interpretive statement, and it does not inform voters of any of the myriad collateral impacts of their votes. For 15 instance, the Referendum simply makes no reference whatsoever to the fact the City?s elections will remain non-partisan, despite being included on the same ballot as ?partisan? general contests, [ii] the City?s runoff elections will be shifted from June to December the heart of the Holiday Season, where short, busy days may combine with inclement weather to dramatically depress voter turnout), and the Mayor and City Council?s terms will be extended by statute if the Referendum passes. Thus, if the Court permits a binding Referendum to change Jersey City?s nonpartisan elections from May to November to proceed, it may only so do after performing major surgery on the Referendum text to resolve the question?s ambiguity, and (ii) adding a robust interpretative statement. To this end, Plaintiffs suggest the following amendments and additions: Referendum Question ?Should the Charter of the City oerrsey City, governed by Mayor-Council Form C, be amended as permitted under that plan, to provide for the holding of its regular municipal elections on the same date of the general election in November, pursuant Wwith any required runoff occurring in December Interpretive Statement If the voters approve this referendum question. beginning with the City election now scheduled to take place on the second Tuesday in Mav, 2017, City elections will remain nonpartisan. but shall be held on the first Tuesday following a Mondav in November, that day being the same day as the general election. In the event that a runoff election is required bv law. it shall be held at a special election on the subsequent Tuesday next after the first Monday in December. Additionally, if the voters approve this referendum. the terms of any person in office on the date of the adoption of this ordinance. including the Mavor and the Citv Council. shall be extended until the Citv holds its organization meeting. which shall occur no later than lanuary 7 in the year following the November election. 16 Of course, Plaintiffs do not intend for their suggested language to be taken as GOSpel. However, Plaintiff?s proposed language does point to the serious dual? pronged problem the Referendum poses: It victimizes both the highly?educated and uninformed voter [who does not have steeped knowledge in the nuances of the Faulkner Act and Uniform Nonpartisan Election law]. Consequently, notwithstanding whether the court chooses to Plaintiffs' proposed language, it may not allow the Referendum to proceed as presently promulgated. Conclusion For the various reasons foregoing, Plaintiffs respectfully request the court require the Mayor and City Council to redraft the Referendum by amending the text of its question, and [ii] adding an interpretive statement prior to allowing the Referendum to appear on any ballot. Respectfully submitted William C. Matsikoudis MATSIKOUDIS FANCIULLO, LLC Attorneys for Plaintiffs 17 MATSIKOUDIS 8; FANCIULLO, LLC 270 Marin Boulevard Jersey City, 07302 T: [201) 915?0407 Attorney for Plaintiffs Jersey City Civic Committee, Josephine Paige, Philomena Scanga Yvonne Balcer, Rampaul Guyadeen and Viola Richardson JERSEY CITY CIVIC COMMITTEE, JOSEPHINE PAIGE, PHILOMENA SCANGA, YVONNE BALCER., RAMPAUL GUYADEEN SUPERIOR COURT OF NEW JERSEY, and VIOLA RICHARDSON, LAW DIVISION, HUDSON COUNTY Plaintiffs, DOCKET NO: v. ORDER TO SHOW CAUSE BARBARA NETCHERT, Hudson County Clerk, STEVEN FULOP, City ofJersey City Mayor, and: THE MUNICIPAL COUNCIL ofthe CITY of JERSEY CITY Defendant. THIS MATTER having been opened to the Court, the Honorable J.S.C., presiding, upon application MATSIKOUDIS FANCIULLO, LLC [William C. Matsikoudis, Esq. and Derek 8. Fanciullo, Esq., appearing], attorneys for Plaintiffs JERSEY CITY CIVIC COMMITTEE, JOSEPHINE PAIGE, PHILOMENA SCANGA, YVONNE BALCER, RAMPAUL GUYADEEN AND VIOLA RICHARDSON, and it appearing that Defendants having been provided notice of the Within application by and through their attorneys ,Esq., and Esq., appearing), based upon the facts set forth in the Verified Complaint ?led herewith, and it appearing that if the relief requested therein is not granted, immediate and irreparable harm would be suffered by the Plaintiff, and good cause having been shown; IT IS on this day of 2016, ORDERED as follows: 1. Defendant Netchert is hereby enjoined and restrained from printing, preparing or Otherwise producing any ballots for the November 8, 2016 election, until such time as this court has fully adjudicated Plaintiffs? Verified Complaint. 2. On the day of ,2016, at o?clock in the or as soon thereafter as counsel may be heard, Defendants, BARBARA NETCHERT, Hudson County Clerk, HON. STEVEN FULOP, Jersey City Mayor, and THE MUNICIPAL COUNCIL ofthe CITY CITY, shall show cause before the Honorable J.S.C., at the Superior Court of New Jersey, Hudson County Courthouse, located in Jersey City, New Jersey, why an Order should not be entered as follows: Making the restraints heretofore entered permanent; Finding that the referendum illegally conflates the Faulkner Act and the Uniform Nonpartisan Elections Law, and prohibiting the referendum as drafted from being placed on the ballot. In the alternative, enjoining Defendants and the Municipal Council of the City of Jersey City to redraft the Referendum Question to read as stated below and to add an Interpretive Statement as stated below, and enjoining Defendant Netchert and the Office of the Hudson County Clerk from printing, publishing, preparing or otherwise producing any ballots including the Referendum Question and Interpretive Statement until any and all deletions, amendments and changes ordered by this Court have been made: Referendum Question ?Should the Charter of the City of Jersey City, governed by Mayor-Council Form C, be amended as permitted under that plan, to provide for the holding of its regular municipal elections on the same date of the general election in November, anv required runoff electionfsl occurring in December?? Interpretive Statement If the voters approve this referendum question. beginning with the Citv election now scheduled to take place on the second Tuesday in Mav, 2017, Citv elections will remain nonpartisan. but shall be held on the first Tuesdav following a Mondav in November. that day being the same day as the general election. In the event that a runoff election is required by law. it shall be held at a special election on the subsequent Tuesday next after the ?rst Monday in December. Additionallv. if the voters approve this referendum, the terms of any person in office on the date of the adoption of this ordinance, including the Mavor and the Citv Council, shall be extended until the Citv holds its organization meeting. which shall occur no later than Ianuarv 7 in the vear following the November election. And it is further ORDERED that: 1. The Defendant may move to dissolve or modify the temporary restraints herein contained on two days notice to the Plaintiff?s Attorneys. 2. A copy of this Order to Show Cause, Verified Complaint, legal memorandum and any supporting affidavits or certifications submitted in support of this application be served up on the Defendant personally or via certified mail within days of the date hereof, in accordance with R. 4:4-3 and R. 4:4?4, this being original process. 3. The Plaintiff must file with this court her proofof service of the pleadings on the Defendant no later than three days before the return date. Defendant shall file and serve a written response to this Order to Show Cause and the request for entry ofinjunctive relief and proof of service by ,2015. The original documents must be filed with the Clerk of the Superior Court in the county listed above. A directory of these offices is available in the Civil Division Management Office in the county listed above and online at You must send a copy ofyour opposition papers directly to Judge whose address is New Jersey. You must also send a copy of your opposition papers to the Plaintiffs attorney, whose name and address appear above. A telephone call will not protect your rights; you must file your opposition and pay the required fee of$ and serve your opposition on your adversary, if you want the court to hear your opposition to the injunctive reliefthe Plaintiff is seeking. The Plaintiff must ?le and serve any written reply to the Defendant?s Order to Show Cause opposition by 2015. The reply papers must be filed with the Clerk of the Superior Court in the county listed above, and a copy of the reply papers must be sent directly to the chambers ofludge If the Defendant does not file and serve Opposition to this Order to Show Cause, the application will be decided on the papers on the return date, and relief may be granted by default, provided that the Plaintiff files a proof of service and a proposed form of order at least three days prior to the return date. If the Plaintiff has not already done so, a proposed form of order addressing the relief sought on the return date (along with a self-addressed return envelope with return address and postage] must be submitted to the court no later than three (3) days before the return date. Defendant take notice that the Plaintiff has filed a lawsuit against you in the Superior Court of New Jersey. The Verified Complaint attached to this Order to Show Cause states the basis of the lawsuit. If you dispute this Complaint, you, or your attorney, must file a written Answer to the Complaint and proof of service within 35 days from the date of service of this Order to Show Cause, not counting the day you received it. These documents must be filed with the Clerk of the Superior Court in the county listed above. A directory of these offices is available in the Civil Division Management Office in the county listed above and online at ferosefi?i 53 Includea$ filing fee, payable to the ?Treasurer, State of New Jersey. You must also send a copy of your Answer to the Plaintiffs attorney, whose name and address appear above. A telephone call will not protect your rights; you must file and serve your Answer [with the fee] or judgment may be entered against you by default. Please note: Opposition to the Order 10. to Show Cause is not an Answer, and you must file both. Please note further: Ifyou do not file and serve an Answer within 35 days of this Order, the Court may enter a default against you for the reliefthe Plaintiff demands. Ifyou cannot afford an attorney, you may call the Legal Services office in the county in which you live or the Legal Services of New Iersev Statewide Hotline at (1-888-576-5529). If you do not have an attorney and are not eligible for free legal assistance, you may obtain a referral to an attorney by calling one of the Lawyer Referral Services. A directory with contact information for local Legal Services Offices and Lawyer Referral Services is available in the Civil Division Management Of?ce in the county listed above, and online at above-referenced web address. The court will entertain argument, but not testimony, on the return date of the Order to Show Cause, unless the court and parties are advised to the contrary, no later than days before the return date.