George Ostergren and Glenn Van Lier v. Township Committee of the Township of Hillsborough

Judge Buchsbaum’s opinion in the Hillsborough Faulkner Act case is now online!

George Ostergren and Glenn Van Lier v. Township Committee of the Township of Hillsborough, et al. (click here)

[Later note: The link to the opinion went dead sometime after late 2005. It was an “unpublished” decision, which means that the court holds it aside because it is not meant to have precedence in later cases. Just a decision for this case.]

[Update 1/14/12: the only cited evidence I have is when the Hillsborough Township Committee was denied an appeal to the New Jersey Supreme Court.]

My little contribution was to point the legal team to the Acting Clerk’s misreading of both the Hamilton Taxpayers’ case, and Pappas v. Malone, 36 N.J. 1 (1961).

From the opinion (sorry for all the legal jargon and cites–they have to be there!):

. . .[P]laintiffs first argue that under the holding in Pappas v. Malone, 36 N.J. 1 (1961), each petition is not required to contain such names. Under N.J.S.A. 40:69A-19, the petition shall be subject to the provisions of N.J.S.A. 40:69A-1(b). Under N.J.S.A. 40:69A-1(b), a petition shall conform to the requirements of form for petitions under sections N.J.S.A. 40:69A-186 through 40:69A-188, except that there shall be no reference therein to any ordinance.

Plaintiffs also argue that the full import of N.J.S.A. 40:69-186 as it relates to the placement of the names and addresses of the Committee of Petitioners on each petition page is only required when the vote is on an ordinance.

In Pappas, our Supreme Court reversed the finding of the trial Court supporting the decision of a city clerk rejecting a petition seeking a referendum election.

The Supreme Court held that �the Legislature did not incorporate all of the provisions of sections 186 to 188 but rather only such portions of those sections as constitute �requirements of form.�� Id. at 4. The Supreme Court then went on to hold that �the requirement for the designation of a committee of Petitioners is a matter of substance over form and is inapplicable under sections 1(b), 19 or 25.� Id. at 5. [Emphasis added.]

The reasoning behind this is that following the filing of a petition the governing body might take such action as would make it desirable to withdraw the petition but no such consideration applies with respect to petitions for charter study or for adoption of or reversion to a form of government.� Id.

Defendant opposes, arguing that under Hamilton Township Taxpayers Association v. Warwick, 180 N.J. Super. 243 (1961)[sic–should be 1981], the names and addresses of all of the Committee of Petitioners must be affixed to each sheet. However, the Appellate Division in Hamilton distinguished Pappas stating that Pappas, unlike Hamilton, involved “a referendum under N.J.S.A. 40:69A- 25 for approval or rejection of a reversion to the immediately prior form of government.” Id. at 246.

In fact, the Appellate Division in Hamilton, recognized the differentiation made in Pappas by stating: “That holding is reached in view of the Committee’s substantive authority under � 186 to withdraw a petition, which has no counterpart under �� 1, 19 or 25.” Hamilton, supra at 246.[Emphasis added.]

From Hoofin’s blogspot (week of August 22, 2004):

Turns out, no, the Hillsborough Clerk is entirely wrong! It turns out that the section relied on in the Hamilton Taxpayers Assocation case, calling for the Committee of Petitioners, does not apply to (excuse the jargon) petitions to place a charter-change question on the ballot in non-Faulkner Act towns! (This would be a petition under N.J.S.A. . . . 40:69A-19 . . ..)

The embarrassment, is that the Hamilton Taxpayers Association case even says so, clearly, in the opinion:

The Supreme Court concluded that it need not determine whether there was such legislative oversight, because the requirement that the names and addresses of the Committee of Petitioners appear on each separate petition sheet is a matter of substance and not of form and, accordingly, inapplicable to referendum petitions under sections 1, 19, and 25. 180 N.J.Super. 243, 246.

Go up to the County Library in Bridgewater, get volume 180 of the New Jersey Superior Court Reporter, open to page 246 and read it yourself.

The New Jersey Supreme Court case referred to in the opinion, is Pappas v. Malone, 36 N.J. 1 (1961). It was a six-one decision that clearly explains why the Committee of Petitioners rule is not required for sections 1, 19 and 25.

Go up to the County Library, get volume 36 of the New Jersey Supreme Court Reporter, open to page 1, and read the whole opinion.

It is exactly about the same kind of thing the Acting Clerk in Hillsborough is attempting to do.

And he is wrong.

Wrong in the spirit of the rejection. Wrong in the law.

Will he still have a job, when the Faulkner Act “mob” is done with him??

I am very happy to have contributed, in some way, in the right of the People to have a vote.

Let’s hope the current Hillsborough government finally sees the light about this matter—stop protesting the right of the voters to vote on the Faulkner Act Question!

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