                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5731-11T4


HONORABLE DANA L. REDD, Camden
City Mayor, and HONORABLE
FRANCISCO MORAN, Camden City
                                       APPROVED FOR PUBLICATION
Council President,
                                          October 29, 2013
      Plaintiffs-Respondents,
                                         APPELLATE DIVISION
v.

VANCE BOWMAN, LARRY GILLIAMS,
EULISIS DELGADO, MARY I. CORTES,
and ROBERT DAVIS, individually
and collectively as the Committee
of Petitioners,

      Defendants-Appellants,

and

LUIS PASTORIZA, Clerk of the City of
Camden, JOSEPH RIPA, Clerk of Camden
County; PHYLLIS PEARL, Camden County
Superintendent of Elections; and the
CAMDEN COUNTY BOARD OF ELECTIONS,

      Defendants-Respondents,

and

CAMDEN CITY COUNCIL,

     Defendant.
_____________________________________________________

          Argued June 4, 2013 – Decided October 29, 2013

          Before Judges Messano, Lihotz and Ostrer.
          On appeal from the Superior Court of New
          Jersey, Law Division, Camden County, Docket
          No. L-2019-12.

          Anthony   Valenti  argued  the   cause  for
          appellants (Caplan, Valenti & Murray, PC,
          attorneys; Mr. Valenti and Karen M. Murray,
          on the brief).

          John C. Eastlack, Jr. argued the cause for
          respondent Honorable Dana L. Redd, Camden
          City   Mayor   (Weir  &   Partners,   L.L.P.,
          attorneys; Mr. Eastlack, on the brief).

          Jay J. Blumberg argued the cause for
          respondent Honorable Francisco Moran, Camden
          City Council President (Law Offices of Jay
          J. Blumberg, attorneys; Mr. Blumberg, on the
          brief).

          The opinion of the court was delivered by

MESSANO, P.J.A.D.

    The   government   of   the   City   of   Camden   (Camden)   operates

pursuant to the Optional Municipal Charter Law, N.J.S.A. 40:69A-

1 to -210, commonly known as the Faulkner Act (or the Act).             The

voters in a Faulkner Act municipality "may propose any ordinance

and may adopt or reject the same at the polls, such power being

known as the initiative . . . ."          N.J.S.A. 40:69A-184.        They

"also have the power of referendum[,] which is the power to

approve or reject at the polls any ordinance submitted by the

council to the voters or any ordinance passed by the council,

against which a referendum petition has been filed . . . ."

N.J.S.A. 40:69A-185.




                                    2                             A-5731-11T4
      We     have   said    that       "[t]he    'salutary         purposes'    of    both

initiative and referendum include 'arousing public interest' and

'placing in the hands of the voters . . . direct means of

controlling proposed or already enacted municipal legislation

and also of accomplishing the enactment of legislation which has

neither been proposed nor adopted.'"                      City of Ocean City v.

Somerville, 403 N.J. Super. 345, 352 (App. Div. 2008) (quoting

Maese   v.    Snowden,      148    N.J.    Super.    7,       11    (App.    Div.     1977)

(citations     omitted)).          The    "[t]wo    statutes         ensure    that    the

voters have that right both before and after the council adopts

an   ordinance      on   any    particular       subject."           Ibid.    (citations

omitted).

      This appeal involves an initiative petition and proposed

ordinance     filed      with   the     Camden    city    clerk,       defendant      Luis

Pastoriza, by defendants Vance Bowman, Larry Gilliams, Eulisis

Delgado, Mary I. Cortes and Robert Davis, collectively known as

the Committee of Petitioners (the Committee).                       The ordinance was

proposed      in    response      to    Camden's    decision         to     disband    its

municipal      police      department      and    join    a    newly-formed         county

police force.        Plaintiffs, Mayor Dana L. Redd and City Council

president Francisco Moran, filed a complaint seeking to declare

the petition-initiated ordinance invalid before it was submitted

to the City Council or placed on any ballot.




                                            3                                   A-5731-11T4
    The      Law    Division       judge              determined     that   the    proposed

ordinance     did       not     "unduly           restrict"        Camden's       "statutory

authority"     under       N.J.S.A.          40A:14-118,           which    grants       every

municipality the right to "create and establish" a police force.

However,    the    judge      entered        restraints          "prohibiting"     the    city

clerk "from accepting the petition and proposed ordinance for

filing"    because      the     proposed          ordinance        "create[d]      an    undue

restraint    on     the       future    exercise            of    municipal   legislative

power," was "invalid," and could not "be placed on the ballot

for voters to act upon."               The judge specifically refrained from

considering whether the proposed ordinance was pre-empted by the

Municipal    Rehabilitation            and    Economic           Recovery   Act,    N.J.S.A.

52:27BBB-1 to -75 (MRERA), and the Special Municipal Aid Act,

N.J.S.A. 52:27D-118.24 to -118.31 (SMAA).                           The Committee filed

this appeal.

    We have considered the arguments raised in light of the

record and applicable legal standards.                            We reverse and remand

for further proceedings consistent with this opinion.

                                                       I

    The facts are not disputed.                            Camden's existing municipal

police department was established and organized by ordinance as

authorized by N.J.S.A. 40A:14-118.                          On June 17, 2008, Camden

entered    into     a   Memorandum           of       Understanding     (MOU)      with    the




                                                  4                                  A-5731-11T4
Division of Local Government Services (DLGS) in the Department

of Community Affairs (DCA) for the provision of $61.5 million in

aid pursuant to the SMAA.               The MOU required Camden to accept

certain oversight measures and other conditions imposed by the

State.      Camden entered into similar MOUs in order to receive

additional aid in 2009 and 2010.

       Nevertheless, Camden's financial woes continued.                         On June

23,    2010,   DLGS        published    qualification        standards       for      the

"Transitional Aid to Localities" program (TAL), which superseded

prior programs, including the SMAA.                 As declared by DLGS, TAL

was   intended       for    "municipalities      that     have   the     most    severe

structural         financial       problems,"     "despite       aggressive         cost

reductions     and     service       modifications,"       and    need     additional

assistance     "to    mitigate       significant    property      tax    increases."

The standards emphasized "labor cost reductions and changes in

service delivery" as "preconditions for receipt of aid."                             Such

reductions     and         changes   would      require    the     elimination         of

"redundant or excessive services."               A municipality's application

for TAL funding needed to demonstrate cost reductions compared

to    its   2009    budget,     including     "documented        efforts    to     share

public      safety     dispatch,       code     enforcement,        public       health

services,      and         other     services      offered        by     neighboring

municipalities, area boards of education, local authorities, or




                                          5                                     A-5731-11T4
the county, if those costs are less than the current full cost

of providing equivalent service."

    Camden sought $54 million in TAL funding for 2011.                           The

application      painted   a     dire    picture    of   increasing     costs   and

projected budget shortfalls, as well as the anticipated adverse

impact that reductions in Camden's police force would have upon

the acknowledged historic, and intractable, violent crime rate

in the city.       Camden agreed to enter into an MOU by which DLGS

would    have    outside    "management,       financial,        and   operational

specialists"      assess   municipal      operations,      and   the   city   would

"[i]mplement actions as recommended . . . ."                     On November 24,

2010, DLGS awarded Camden $69 million in TAL funding for 2011,

and, on December 15, Camden and DLGS entered into a new MOU for

2011.    The MOU required Camden to reduce staffing further for

2012, and make other efforts to reduce costs, maximize recurring

revenue, and eliminate the need for TAL funding within four

years.     Camden    continued      to    negotiate      collective    bargaining

agreements with those unions representing its police department,

which had experienced a significant reduction in force.                       Camden

came under some degree of DLGS oversight and control, although

it is unclear from the record its nature and extent.

    In    a     February   15,    2011    notice,    DCA   clarified     that    the

receipt of TAL funding required a municipality to show it "ha[d]




                                          6                               A-5731-11T4
moved beyond planning for operational efficiency and ha[d] begun

to reduce costs."       DCA "expect[ed] that the municipality . . .

[had]    engaged   with    its    unions      and      non-union    employees    to

effectuate    savings      through       reduced       salary   costs,    reduced

staffing   levels,   modified       work      rules,     modified    controllable

benefits costs, or other efforts to mitigate" salary and wage

costs.       Participation       would       require     the    municipality     to

"[s]ubmit[] to broad State controls over hiring, procurement,

and other matters[,]" and "additional fiscal control measures as

may be directed by [DLGS]."

    In June 2011, Camden issued "Camden Forward, the Transition

Plan for 2011-2015."       While recognizing the intended use of non-

TAL funding to rehire laid-off police officers as a short-term

measure,     the   plan     noted    Camden's          intention     to   explore

"regionalized or shared services for police and fire services as

a long-term solution for public safety and the fiscal challenges

confronting the City."

    On August 9, 2011, the City Council passed a resolution

authorizing Camden to enter into an MOU with DCA and the County

of Camden (the County) "for the purpose of preparing a plan for

the creation of the Camden County Police Department," a new

countywide agency.        On August 29, 2011, the MOU was executed by

plaintiffs, County officials and the Director of DLGS.                       Under




                                         7                                A-5731-11T4
the terms of the MOU, Camden agreed to "act as a co-applicant on

submittals and filings . . . with respect to the creation of the

Camden County Police Department."             The County would act as the

"lead    agency"   in    forming   the   County     police     department        which

would be "available to all municipalities within the County on a

voluntary basis."

    On the same day, Camden requested $67.5 million in TAL

funding for 2012.         The application represented that the 2012

budget anticipated an agreement with the County "under which

[Camden] would pay $14,000,000 for police services."                    On October

7, DLGS advised Camden that it would receive $61.4 million in

TAL funding for 2012.

    On December 27, 2011, the City Council adopted a resolution

immediately implementing the MOU regarding formation of a County

police department.        The resolution noted that the County police

department would include a Camden Metro Division "to provide for

public    safety   and    law   enforcement    in    .    .   .     Camden,"     while

"requiring the County Police Department to offer employment to

qualified   officers      previously     employed"       by   the    Camden    police

department.    Camden's police department would be dissolved upon

the creation of the Camden Metro Division.                On January 26, 2012,

the County adopted a resolution establishing the county police

department.




                                         8                                    A-5731-11T4
    On    April    10,   2012,    the   Committee       submitted     a    petition

seeking   consideration      of    an       initiative    ordinance        amending

Camden's municipal code to read:

           A.   There shall be created and maintained
           in continued existence, in, for and by the
           city of Camden, its own Police Department
           which shall remain the police department for
           the City of Camden and which shall consist
           of a Police Director, a Chief of Police and
           members and officers as shall be deemed
           necessary by the governing body of the City
           of Camden which shall, from time to time,
           determine the number of persons, including,
           without limitation, temporary officers and
           members in an emergency, to be appointed to
           these   positions,   together   with   their
           compensation, all as provided for under
           N.J.S.A. 40A:14-118.

           B.   The City of Camden shall not disband
           its   Police   Department     pursuant    to   the
           creation    of    any    county    wide     Police
           Department established by or for the County
           of Camden and shall not participate or join
           in   the   creation     of   any   such     police
           department established by or for the County
           of    Camden,    nor     participate     in    any
           consolidation    of   or    regionalization     of
           police services sought to be created by any
           establishment   of    a    county   wide    police
           department, and shall instead continue to
           maintain its own police department.

Pastoriza reviewed the petition, and, on April 20, concluded it

was legally sufficient.          See N.J.S.A. 40:69A-187 (requiring all

initiative   and    referendum      petitions      to    be   filed       with   the

municipal clerk who "shall determine whether . . . the petition

has a proper statement of the circulator and . . . is signed by




                                        9                                  A-5731-11T4
a sufficient number of qualified voters").                        Pastoriza advised

the Committee, plaintiffs and other interested parties that he

would "move the certified petition forward as an ordinance on

[second]   reading      and    public    hearing     [at]       the    next       regularly

scheduled City Council meeting (May 8[], 2012) for City Council

consideration and action as required by law."1

      Plaintiffs filed their complaint on May 2, 2012, naming

the   Committee   and    its    individual     members,          the       City   Council,

Pastoriza,    and       various     County      officials             as     defendants.

Plaintiffs   sought     a     declaration     that   the        "proposed         petition-

initiated ordinance [was] null and void," and injunctive relief,

specifically enjoining Pastoriza from submitting the ordinance

to the City Council and the City Council from considering it.

The   Committee      answered      and      asserted        a     counterclaim           and

crossclaim, seeking a declaration that the ordinance was valid,

requiring its submission to the City Council and, if rejected,

its placement on the ballot for consideration by the voters.

      The judge granted plaintiffs temporary restraints, and the

parties stipulated to the dismissal of the complaint as to the


1
  N.J.S.A. 40:69A-190 provides: "Upon a finding by the municipal
clerk that any petition . . . is sufficient, the clerk shall
submit the same to the municipal council without delay. An
initiative ordinance so submitted shall be deemed to have had
first reading and provision shall be made for a public hearing."




                                         10                                        A-5731-11T4
City Council with prejudice.                Following a hearing on June 11,

2012,   the    judge     placed   his   oral          decision    on     the     record   and

entered the order under review.

                                                 II

     The      Committee     claims    that       the       proposed     ordinance     was    a

valid exercise of the initiative powers granted by the Faulkner

Act, and the judge erred by concluding the proposed ordinance

impermissibly        restrained      future       municipal       legislation.            The

Committee also asserts that the initiative ordinance was not

prohibited      by     N.J.S.A.      40A:14-118,            nor    preempted        by    the

statutory      regimes      impacting    local         finance        and   budgeting       in

Camden.2

                                            A.

     We     begin      by    noting     that          "a     question       of    statutory

interpretation[] . . . is a purely legal issue and, thus, we owe

no deference to the trial court's legal conclusions."                                 In re

Trenton    Ordinance        09-02,    201    N.J.          349,   358    (2010)     (citing

Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)).      "'Our task . . . is to determine and effectuate the




2
  The judge concluded the ordinance did not violate N.J.S.A.
40A:14-118.    Plaintiffs have not cross-appealed from that
determination.   We therefore need not consider the Committee's
argument in this regard.



                                            11                                      A-5731-11T4
Legislature's intent.'"               Ibid. (quoting Bosland v. Warnock Dodge

Inc., 197 N.J. 543, 553 (2009)).

       As   noted,       N.J.S.A.      40:69A-184         allows     the     voters     in    a

Faulkner Act municipality to "propose any ordinance and . . .

adopt or reject the same at the polls . . . ."                                    (Emphasis

added).          The     Faulkner      Act    "does       not   limit      the   power       of

initiative to only those areas of municipal concern which have

never been the subject of favorable council action."                                Smith v.

Twp. of Livingston, 106 N.J. Super. 444, 450 (Ch. Div.), aff'd

o.b., 54 N.J. 525 (1969).                    Instead, it lets voters seek "to

amend a long-standing ordinance" when "there is either a change

in the circumstances or in the will of the people."                           Ibid.

       "N.J.S.A. 40:69A-184 . . . by its very terms admits of no

qualification."            Ocean City, supra, 403 N.J. Super. at 357.

Yet,    while     the     express      language         permitting    the     proposal       by

initiative of "'any ordinance' means 'all ordinances,' . . . no

one    disputes        that    the    power    of       initiative      is    not    without

limitation."           Ibid. (citing In Re Ordinance 04-75, 192 N.J. 446,

454, 460-61 (2007)).                 "[T]here are certain ordinances . . .

which    are     simply       not    subject       to    initiative     and      referendum

because     of    the     subject     matter       involved     or   because        they   are

statutorily        excluded          from    the        initiative      and      referendum

provisions."       Id. at 359 (citations omitted).




                                              12                                     A-5731-11T4
    For example, in In re Ordinance 04-75, supra, 192 N.J. at

465, the Court recognized that the referendum provision of the

Faulkner    Act    "contains       at       least    a    partial,    if     not     total,

exception to the referendum rule for municipal budgets."                                 The

Court also set forth a non-exhaustive list of statutes that

exempt     ordinances         enacted       thereunder       from     the    referendum

provisions of the Act.            Id. at 466-67.            "That sampling clearly

establishes      that   the     Legislature         has    determined,      on   multiple

occasions, those municipal matters that should not be called

before the voters in a referendum."                  Id. at 467.

    "But even where the legislative directive has not been as

express or precise, limitations on initiative authority may be

inferred    or     implied      from        comprehensive       State       supervision,

regulation or occupation of the field."                     Ocean City, supra, 403

N.J. Super. at 360.             We need not repeat the examples of this

proposition we previously cited in Ocean City.                       Id. at 360-70.

    In declaring the initiative ordinance invalid in this case,

the Law Division judge did not rely upon either the express

language    of    the   Faulkner      Act     or    some    other    statute,      or    the

"comprehensive State supervision, regulation or occupation of

the field."       Id. at 360.           Indeed, he specifically declined to

address    whether      the    SMAA    or    MRERA       preempted    the    initiative-

generated ordinance.           Instead, the judge concluded the ordinance




                                             13                                    A-5731-11T4
was invalid because it "create[d] an undue restraint on the

future   exercise    of   municipal    legislative       power."     We     now

consider that issue.

                                           B.

       In Ocean City, supra, we recognized another limit "on the

power of initiative [that] stems from the settled principle that

a governing body cannot, absent specific legislative permission,

divest its successors of legislative power."             Id. at 359 (citing

Maese, supra, 148 N.J. Super. at 13 (quoting McCrink v. West

Orange, 85 N.J. Super. 86, 91 (App. Div. 1964))); (citing 4

McQuillin on Municipal Corporations § 13.03(b) (3d rev. 1968))

(emphasis added); see also N.J. Educ. Ass'n v. State, 412 N.J.

Super. 192, 214-15 (App. Div.), certif. denied, 202 N.J. 347

(2010) ("[A]bsent specific legislative permission, a governing

body   cannot   divest    its   successors       of   legislative   power.").

"It stands to reason . . . that if a governing body cannot by

ordinance    presently    adopted   restrain      the   future   exercise    of

municipal legislative power, neither may the citizenry through

initiative    or   referendum    create     an    ordinance   divesting     the

municipal governing body of that power."              Ocean City, supra, 403

N.J. Super. at 359.

       In McCrink, supra, 85 N.J. Super. at 88-89, an initiative

ordinance sought to fix maximum salary ranges for fire personnel




                                      14                             A-5731-11T4
that could not be raised for two calendar years.                        We declared

the "ordinance [was], on its face, defective[,]" noting "[i]t is

fundamental that a governing body could not, by an ordinance

presently adopted, place a restraint upon the future exercise of

municipal legislative power."           Id. at 91.

    In Maese, supra, an initiative ordinance sought to prohibit

the governing body or officials of the township "from committing

or spending any public funds," "incurring any indebtedness" or

"pledging or obligating public funds" to construct a municipal

complex    on     township      land.         148      N.J.   Super.       at    10.

Relying    on    McCrink,    supra,     the    trial     judge    concluded      the

"ordinance      was   invalid   on    its    face    'because     it    acts    as   a

restraint on all future actions, not only by this governing body

but by any other governing body.'"                  Id. at 11.         We affirmed,

holding,

           [t]he invalidity of the proposed initiative
           ordinance . . . springs from an attempt to
           shackle, if not to completely immobilize,
           the   governing  body   in  connection  with
           construction on the municipally-owned tract.
           Since the governing body itself could not
           enact such an ordinance, it follows from
           what has been said that the voters were
           likewise without that authority.

                No governing body, certainly without
           specific legislative permission, may divest
           its successors of legislative power.

           [Id. at 13 (citing 4 McQuillin,                       supra,
           §13.03b at 477) (emphasis added).]



                                        15                                 A-5731-11T4
      As the above discussion demonstrates, this restriction on

the legislative power of voters in a Faulker Act municipality

arose from a basic tenet of municipal corporate law, not the

express    language    of   the   Faulkner        Act   or       any   other   statute.

"Although a council has the power, unless restricted by charter,

to enact an ordinance to take effect after the expiration of the

terms of office of its members, it cannot, by ordinance, divest

its   successor   of   legislative      power      .    .    .    ."     McQuillin    on

Municipal Corporations § 13:03.15 (3d Ed. 2011) (citing Ocean

City, supra, and Maese, supra).               However, as we recognized in

Ocean City and Maese, an exception to the general rule exists

when the Legislature specifically permits present legislative

bodies to restrict the legislative power of their successors.

Ocean City, supra, 403 N.J. Super. at 359; Maese, supra, 148

N.J. Super. at 13.

                                             C.

      N.J.S.A.    40:48-1    provides     that     "[t]he         governing    body   of

every     municipality      may   make,       amend,         repeal      and   enforce

ordinances . . . ."          However, the Legislature has bestowed a

unique characteristic on an ordinance passed by initiative.3                          The


3
  As the subsequent discussion makes clear, we respectfully
disagree with our colleagues who stated in Ocean City, supra,
403 N.J. Super. at 357-58, "ordinances passed by initiative are
                                                    (continued)


                                        16                                     A-5731-11T4
Faulkner Act specifically strips away the power of the governing

body   to   repeal   a   validly-approved    initiative    ordinance     and

bestows that power solely on the voters.

            If a majority of the qualified electors
            voting on the proposed ordinance shall vote
            in favor thereof, such ordinance shall
            thereupon   become     a    valid     and    binding
            ordinance   of    the    municipality       and   be
            published   as    in     the     case    of    other
            ordinances.    No such ordinance shall be
            amended or repealed within [three] years
            immediately   following       the   date    of   its
            adoption by the voters, except by a vote of
            the people. The council may, within [three]
            years immediately following the date of
            adoption   of    the     ordinance,      submit    a
            proposition for the repeal or amendment of
            that   ordinance    to     the    voters    at   any
            succeeding   general      election     or    regular
            municipal election.          If the proposition
            submitted shall receive a majority of the
            votes cast at that election, the ordinance
            shall be repealed or amended accordingly.

            [N.J.S.A. 40:69A-196(a) (emphasis added).]

This highlighted provision was added to the Faulkner Act in

1982, five years after our decision in Maese.             See L. 1982, c.

145, § 6 (eff. Sept. 28, 1982) (the Amendment).

       The Amendment also changed the terms of the Commission Form

of Government Law, known as the Walsh Act, N.J.S.A. 40:70-1 to

40:76-27, which theretofore had provided, without limitation,



(continued)
subject to amendment or repeal in the same manner that
ordinances passed by the governing body of a municipality are."



                                    17                             A-5731-11T4
that any ordinance passed by initiative "shall not be repealed

or amended except by a vote of the people."                  N.J.S.A. 40:74-18

(1982).       The Amendment added a similar three-year limit during

which an initiative ordinance could not be repealed or amended

in a Walsh Act municipality unless submitted to, and approved

by, the voters.         L. 1982, c. 145, §§ 16, 17.               The Legislative

statement accompanying the Amendment makes clear its purpose:

"[T]o establish a uniform [three] year time limit within which a

governing body may, solely by submission to the voters, amend or

repeal    an   ordinance     adopted    by   initiative      .    .    .    ."       Bill

Sponsor's Statement to S.763 (1982).

       Prior to the Amendment, an ordinance approved by initiative

in a Faulkner Act municipality "bec[a]me a valid and binding

ordinance of the municipality and [would] be published as in the

case     of    other    ordinances."         N.J.S.A.     40:69A-169             (1982).

Presumably,      like    any    other    ordinance,     it       was       subject      to

immediate      repeal   by     the   municipal   governing        body.           Hence,

application of a general principle of municipal corporate law to

initiative ordinances – a present legislative body may not bind

the hands of it successors — was logical.               The voters could not

restrict the legislative powers of a successor governing body

any more than the present governing body could.




                                        18                                       A-5731-11T4
       However, through passage of the Amendment, the Legislature

has given the voters in a Faulkner Act municipality the power to

restrict the legislative actions of the present governing body

and its successor for a period of three years, which restriction

may only be removed if the governing body returns the issue to

the people for a vote.            In other words, the Legislature has

granted to the people "specific legislative permission," Maese,

supra, 148 N.J. Super. at 13, to divest the governing body of

its    legislative     power   for   a   finite    period     of    time,   thereby

creating an exception to the general rule that "[n]o governing

body . . . may divest its successors of legislative power."

Ibid.

       Given    the   legislative    changes      made   to   the    Faulkner     Act

since Maese and McCrink were decided, those cases have limited

vitality.4      Lest our opinion be read too broadly, we reiterate

that    the    Faulkner   Act's   provisions      only   limit      the   governing

body's right to repeal an initiative ordinance for three years,

unless the voters choose otherwise.                Because the issue is not


4
  We agree with an argument made by the Committee before the
trial judge and on appeal, i.e., that the discussion in Ocean
City of this judicially-imposed limit on the power of initiative
was dicta.   Our decision in that case turned squarely on the
fact that the proposed ordinance impermissibly tread on the
municipality's budgetary powers, and, hence, was not a permitted
subject matter for initiative. See Ocean City, supra, 403 N.J.
Super. at 363-70.



                                         19                                 A-5731-11T4
before      us,    we   need    not       consider,      for       example,   whether    an

initiative        ordinance     that      expressly      prohibited        the   governing

body from taking action for a period longer than three years, or

committed the governing body to a particular action for more

than three years, would be permissible.

       In   this    case,      the    proposed       ordinance       contained    no   such

restrictions.            Paragraph         A    called       for     the   creation     and

"continued        existence"         of   the       municipal       police    department,

pursuant     to    N.J.S.A.      40A:14-118.            As     we    noted,   Camden    had

already created a municipal police department by ordinance, and

the department's continued existence was implicit unless, and

until, the existing police ordinance was repealed or modified.

See, e.g., Inganamort v. Ft. Lee, 72 N.J. 412, 421 n.2 (1977)

("[A]n ordinance may be promulgated which continues in force

until repealed or superseded.") (citation omitted).

       Paragraph B of the initiative ordinance prohibited the city

from disbanding the police force and joining any County police

force, requiring that Camden "shall instead continue to maintain

its own police department."                     Such general language certainly

does not violate the expressed or implied terms of the Faulkner

Act.     By analogy, in Concerned Citizens of Wildwood Crest v.

Pantalone, 185 N.J. Super. 37, 40, 47 (App. Div. 1982), we held

a   Walsh     Act       initiative        ordinance       that,       without     temporal




                                               20                                 A-5731-11T4
limitation,      "affirmatively           provide[d]     that        the    beaches    in

Wildwood Crest w[ould] be free," was not an improper restraint

on the future exercise of legislative action.

      Furthermore,      based       upon     the      Court's    recent       guidance,

judicially-constructed        limits       on   the    right    to    initiative      and

referendum are inappropriate.

            [W]here the legislative intent is not clear
            "from   the    statute's   text,   legislative
            history, or place in the larger statutory
            scheme[,]" an intention to immunize an
            ordinance from a Faulkner Act challenge will
            not be found. . . . Put another way, in the
            absence   of    an   unequivocal   legislative
            expression to the contrary, citizens in a
            Faulkner Act municipality are empowered to
            protest any ordinance under the Act.       The
            burden is on the party seeking to defeat the
            Faulkner   Act   to   clearly  establish   the
            existence of a contrary legislative intent.

            [In re Ordinance 09-02, supra, 201 N.J. at
            362 (quoting In re Ordinance 04-75, supra,
            192 N.J. at 467).]

"It   is   the   function     of    the    Legislature,        not    the   courts,   to

determine how much direct democracy through referendum should be

conferred on the voters of a municipality."                     In re Ordinance 04-

75,   supra,     192   N.J.    at    467.       "[T]he     democratic         processes

reserved to the people by the Faulkner Act referendum provision

cannot be abridged except with express legislative approval."

In re Ordinance 09-02, supra, 201 N.J. at 368.                       "The Legislature

has occupied the field in this area, and there is no place for a




                                           21                                  A-5731-11T4
separate      judicial      policy    exempting        municipal        ordinances        from

referendum."         In re Ordinance 04-75, supra, 192 N.J. at 470; see

also Roseff v. Byram Twp., 432 N.J. Super. 8, 13 (App. Div.

2013) ("[A] court's role is limited to determining whether the

Legislature's        intention       to    exempt     an    ordinance      .    .     .   from

referendum      is    indicated       by    the     authorizing        'statute's         text,

legislative history or place in the larger statutory scheme.'")

(quoting In re Ordinance 04-75, supra, 192 N.J. at 467)).

       There is no principled reason to treat the Faulkner Act's

initiative process any differently.                    See Great Atl. & Pac. Tea

Co.    v.   Borough    of    Point    Pleasant,       137       N.J.    136,    146     (1994)

(stating initiative and referendum under N.J.S.A. 40:69A-184 and

-185    are   similar       because       "[b]oth    forms      of     action   result       in

action that is binding on the governing body"); Twp. of Sparta

v. Spillane, 125 N.J. Super. 519, 523, 525 (App. Div. 1973)

("The initiative and referendum processes authorized by the act

comprise two useful instruments of plebiscite power . . . ."),

certif. denied, 64 N.J. 493 (1974).                        We     therefore           reverse

those provisions of the Law Division's order that declared the

proposed ordinance to be "invalid" and restrained its further

consideration by the Council or the voters because it improperly

restricted future municipal legislative action.




                                             22                                       A-5731-11T4
                                                III

      "A   statute       has    supremacy        over    an    ordinance."           In    re

Ordinance 04-75, supra, 192 N.J. at 469.                        "[A] State mandate

embodied in a legislative enactment 'that does not allow for the

exercise   of      municipal      discretion       cannot      be     overridden      by   a

referendum.'"           Ocean    City,     supra,       403    N.J.    Super.    at       356

(quoting      In   re    Ordinance    04-75,          supra,    192    N.J.     at   469).

However,   the     Legislature       must    have       intended      such   preemption.

Mack Paramus Co. v. Mayor of Paramus, 103 N.J. 564, 573 (1986).

The   Court    has      long    utilized    a     five-part      test    to    determine

whether the doctrine of preemption applies:

              1.   Does the ordinance conflict with state
              law, either because of conflicting policies
              or operational effect (that is, does the
              ordinance forbid what the Legislature has
              permitted or does the ordinance permit what
              the Legislature has forbidden)?

              2.   Was the state law intended, expressly
              or impliedly, to be exclusive in the field?

              3.   Does the subject matter reflect a need
              for uniformity? . . . .

              4.   Is the state scheme so pervasive or
              comprehensive that it precludes coexistence
              of municipal regulation?

              5.   Does   the  ordinance   stand  "as   an
              obstacle to the accomplishment and execution
              of the full purposes and objectives" of the
              Legislature?




                                            23                                   A-5731-11T4
                [Overlook   Terrace  Mgmt.   Corp. v. Rent
                Control Bd. of W.N.Y., 71 N.J. 451, 461-62
                (1976) (citations omitted).]

       We   have     recognized         the    pervasive    nature       of    the     State's

supervision of municipal finances.                    See Ocean City, supra, 403

N.J. Super. at 363 ("Perhaps state supervision of local affairs

is   no     more    fully        developed     than   in    the    area       of    municipal

finance, where the Legislature has established a comprehensive

system pertaining to municipal budgets, debt and salaries.");

and see Roseff, supra, 432 N.J. Super. at 10-11 (concluding an

ordinance enacted pursuant to the Local Budget Law, N.J.S.A.

40A:4-1 to -89, was not subject to a referendum challenge).

       Plaintiffs        argue      that,     although     the    proposed         initiative

ordinance dealt solely with the police function, it impacted

Camden's        budget     and    finances,      which     are    uniquely         subject    to

additional statutory regimes.

       MRERA was enacted in 2002.                   L. 2002, c. 43, § 75.                 Since

that      time,    Camden         has   been     subject     to    its        terms.         The

Legislature found that, with regard to certain municipalities,

State     aid     filled    their       "structural      [financial]      deficits"          but

failed to "function as an economic impetus toward the rebuilding

of those municipalities" by addressing the elements needed "to

ensure       [their]        long-term          economic      viability,"            including

healthcare services, public safety, and "market-rate housing"




                                               24                                      A-5731-11T4
that would "expand the local tax base and provide a greater

diversity       of   income      levels        among    municipal       inhabitants."

N.J.S.A. 52:27BBB-2(j) to (m).

       The    Legislature       intended       MRERA    to   address     those    needs

through       "exceptional      measures,        on     an   interim      basis,"     to

"strategically       invest"      funds        that    would    help    the     subject

municipalities achieve such viability.                    N.J.S.A. 52:27BBB-2(n),

(o).       MRERA requires the State Treasurer to prepare "an economic

stimulus package designed to foster the revitalization" of the

municipality, along with a "project list" and a specification of

costs.       N.J.S.A. 52:27BBB-44.1, 44.              In addition, upon notice by

the Commissioner of DCA of a municipality's eligibility, the

Governor       appoints     a    "chief     operating        officer      [(COO)]      in

consultation with the mayor and the governing body."                           N.J.S.A.

52:27BBB-7(a).            The     COO     is     charged       with     "reorganizing

governmental operations . . . in order to assure the delivery of

essential municipal services and the professional administration

of that municipal government."                 N.J.S.A. 52:27BBB-3.           The goals

are "municipal rehabilitation" and "economic recovery," pursuant

to     a    "strategic     revitalization         plan"      that     also    addresses

"regional        issues,        including        public        safety."        N.J.S.A.

52:27BBB-6, -29, -38 and -40.




                                           25                                  A-5731-11T4
     The     COO      serves      during    a    "rehabilitation           term"       of    five

years, N.J.S.A. 52:27BBB-2.2(a), -6(a), -7(c)(1), although the

Commissioner of DCA may extend it upon the COO's recommendation.

N.J.S.A.     52:27BBB-3,          -7(c).        The    COO    has    all    the    authority

allocated       by    law    to     the   mayor,      although      the    mayor       and    the

governing       body       retain    a    degree      of     participation        in    budget

decision-making.            N.J.S.A. 52:27BBB-9, -11, -23, -25.                        The end

of the rehabilitation term marks the expiration of the COO's

term.    N.J.S.A. 52:27BBB-6(a), -7(c)(1).

     During          the    rehabilitation           term,    the    COO    may    veto      any

ordinance or resolution adopted by the governing body, but "the

governing body may override the veto by a two-thirds vote of the

fully      authorized        membership         thereof."           N.J.S.A.       52:27BBB-

23(a)(1)(a).          If the COO believes the override to be "contrary

to the rehabilitation or economic recovery goals which justified

the rehabilitation declaration," he or she may submit the matter

to   the    "special         arbitrator"        for     a    final    and    unappealable

determination.              N.J.S.A.      52:27BBB-23(a)(1)(b).               The      special

arbitrator may uphold the override "only upon a finding that the

action     is     consistent         with   the       rehabilitation        and     economic

recovery     of      the    qualified       municipality."             Ibid.;       see      also

N.J.S.A. 52:27BBB-5.




                                                26                                     A-5731-11T4
      In    2007,   the       Legislature    accepted       the   recommendation          of

Camden's COO for a rehabilitation term of ten years rather than

five.      N.J.S.A. 52:27BBB-2.2(c), (d); L. 2007, c. 176, § 1.                          The

Committee asserts in its brief that the ten-year period ended on

October 28, 2012.              The rehabilitation term is followed by a

five-year "economic recovery term."                   N.J.S.A. 52:27BBB-3, -6(a).

During that term the mayor resumes full authority, with certain

enhanced appointment and veto power over municipal boards and

authorities.        N.J.S.A. 52:27BBB-6(b)(1) to (5).                     However, the

municipality remains subject to annual State compliance audits,

N.J.S.A.      52:27BBB-6(b)(6),           and         the   financial         assistance

continues until the municipality no longer meets the eligibility

criteria of SMAA.         N.J.S.A. 52:27-BBB-6(b)(7).

      TAL    superseded        SMAA.      See    S.    Budget     &    Approps.    Comm.,

Statement     to    S.    3118    (Dec.     8,    2011)     ("Transitional         Aid    to

Localities     replaced         three   existing        municipal       aid   programs:

Extraordinary Aid, Special Municipal Aid, and Trenton Capital

City Aid.").         TAL funding is a "discretionary aid program."

N.J.S.A. 52:27D-118.42a.            DLGS was accordingly allowed to impose

the   same    kinds      of    rigorous     and       intrusive       conditions     on    a

municipality that SMAA had authorized:

             Conditions, requirements, or orders deemed
             necessary by [DLGS] may include, but not be
             limited    to,   the    implementation   of
             government, administrative, and operational



                                            27                                    A-5731-11T4
              efficiency and oversight measures necessary
              for the fiscal recovery of the municipality,
              including but not limited to requiring
              approval by [DLGS] of personnel actions,
              professional services and related contracts,
              payment   in   lieu    of   tax  agreements,
              acceptance of grants from State, federal or
              other organizations, and the creation of new
              or expanded public services.

              [N.J.S.A. 52:27D-118.42a.]

      The statutory scheme described seemingly demonstrates the

Legislature's decision to fully occupy the field of municipal

finance in Camden.       The proposed initiative ordinance was not a

budget ordinance; yet, it cannot be disputed that elimination of

the police force, and Camden's membership in, and support of, a

County police force was an integral part of the city's overall

financial strategy as mapped out in the various MOU's referenced

above.   On its face, the statutory scheme does not mandate that

Camden enter into a particular regionalized or shared service

plan.    If it did, the initiative ordinance would be barred.

See, e.g., In re Trenton Ordinance 09-02, supra, 192 N.J. at 469

("A   state    mandate   that   does     not   allow    for   the   exercise     of

municipal discretion cannot be overridden by a referendum.").

Yet, certain provisions of the MRERA, including the powers of

the COO during the "rehabilitation term," and the extraordinary

device   of     appointment     of   a    special      arbitrator    to    render

unappealable decisions, impliedly leave little room for other




                                         28                               A-5731-11T4
voices to be heard.      Perhaps, even the voices of the voters of

Camden.

      The record before the Law Division and before us consists

of several certifications from municipal officials along with

voluminous supporting documentation.          However, there is nothing

provided, for example, from DLGS or DCA regarding the actual

implementation of the MOUs and the nature of State oversight as

to the provision of municipal services that impact the budget.

In other words, the record inadequately explains if adoption of

the proposed initiative ordinance creates "an obstacle to the

accomplishment and execution of the full purposes and objectives

of the Legislature[.]"         Overlook Terrace Mgmt. Corp., supra, 71

N.J. at 462 (internal quotation marks and citation omitted).

      We have been told, without apparent dispute, that the MRERA

rehabilitation    term   has    ended.    Yet,      we   cannot    state    with

certainty how the passage of time since the matter was before

the   Law   Division   may   have   changed   the    municipal      landscape,

particularly as it relates to the preemption issue.

      Therefore, we are compelled to remand the matter to the Law

Division    for   further    consideration    of     whether      the   various

statutory schemes at issue have preempted consideration by the

voters of the proposed initiative ordinance in this case.                      We




                                     29                                 A-5731-11T4
leave the conduct of the remand to the sound discretion of the

Law Division.

    Reversed and remanded for further proceedings consistent

with this opinion.   We do not retain jurisdiction.




                                30                    A-5731-11T4
