Ocean City NJ Taxpayer Protection Ordinance Update

The Supreme Court of New Jersey has summarily remanded the Taxpayer Protection Ordinance case to the Appellate Division. This means the Appellate Court must reconsider the case in light of a recent the Supreme Court decision that overturns a 40-year-old lower court case upon which both the Appellate Court and the Superior Court relied.

The Superior Court held, and the Appellate Division affirmed, that the Taxpayer Protection Ordinance was invalid and could not be adopted by initiative. That decision was based partly on the rationale of Cuprowski v. Jersey City, which held municipal budgets were “administrative” rather than “legislative” acts, whose adoption or nullification by popular vote would result in “chaos.” The lower courts were not persuaded by our argument that an ordinance adopting a prospective budget cap by initiative differs significantly from a retroactive attack, by referendum, on an already-adopted budget.

By summarily remanding the case, the state Supreme Court has merely said the Appellate Court must rethink the case in light of its inability to rely on the Cuprowski rationale. The Appellate Court could again rule against us. But if it does, it must come up with a better reason.

We hope the Appellate Court will now apply the same “plain language” rule that the state Supreme Court applied to the Faulkner Act when it overturned Cuprowski. That Act, under which Ocean City is governed, grants citizens the unequivocal right to propose and vote on “any ordinance” through the initiative process. The issue on remand will likely be whether other state laws except the Taxpayer Protection Ordinance from this plain and unequivocal language.

What’s next? The Appellate Court may, or may not request additional briefs and/or oral argument on the case.

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