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Edward J. Florio, Esq. (025311987)FLORIO ◆ KENNY ◆ RAVAL, LLP125 CHUBB AVENUE, SUITE 310-NLYNDHURST, NEW JERSEY 07071 (201) 659-8011Attorneys for Plaintiff, Mayor Reed Gusciora
MAYOR REED GUSCIORA, MAYOR OF THE CITY OF TRENTON,
Plaintiff
v.
KATHY MCBRIDE, ROBIN VAUGHN, JOHN DOES 1-10,
Defendants.
SUPERIOR COURT OF NEW JERSEYMERCER COUNTY: LAW DIVISIONDOCKET NO.: MER-L-
Civil Action
ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINTS
(ACTION IN LIEU OFPREROGATIVE WRITS)
THIS MATTER being brought before the Court by the law firm of
Florio Kenny Raval, L.L.P., attorneys for the Plaintiff, MAYOR
REED GUSCIORA, seeking relief by way of temporary and preliminary
restraints pursuant to R. 4:52 based upon the facts set forth in
the Verified Complaint filed herewith; and it appearing that
immediate irreparable damage will probably result before notice
can be served and before the return date of this Order to Show
Cause; and for good cause shown:
IT IS on this _____ day of __________________, 2019,
ORDERED that pending a hearing on the return date of this
Order to Show Cause, Defendant, KATHY MCBRIDE, is hereby
temporarily restrained and enjoined from violating Ordinance No.
18-46 and shall not remove Ordinance No. 19-43, Ordinance No. 19-
44, Ordinance No. 19-45, Ordinance No. 19-46, and/or any other
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relisted resolution or ordinance from the agenda of any upcoming
City Council meeting; and it is hereby further
ORDERED that pending a hearing on the return date of this
Order to Show Cause, Defendant, ROBIN VAUGHN, is hereby temporarily
restrained and enjoined from contacting any member of the City of
Trenton administration except through the Mayor or his designee;
and it is hereby further
ORDERED that the Defendants, KATHY MCBRIDE and ROBIN VAUGHN,
shall appear and show cause on the _____ day of ________________,
2019 before the Mercer County Superior Court, Honorable
________________________________, J.S.C. at the Mercer County
Courthouse, 175 South Broad St., Trenton, NJ 08650-0068, at 9:00
a.m., or as soon thereafter as counsel can be heard, why judgment
should not be entered:
a) Converting the above-stated temporary restraints into a preliminary injunction;
b) Declaring that Defendant, KATHY MCBRIDE, violated Ordinance No. 18-46 of the City Code of Trenton;
c) Requiring Defendant, KATHY MCBRIDE, to immediately relist on the City Council’s agenda any resolutions and/or ordinances that have been removed from the agenda but which have not been relisted in violation of Ordinance No. 18-46;
d) Prohibiting, Defendant, KATHY MCBRIDE, from removing in the future any relisted resolutions and/or ordinances that have already been removed once from the agenda pursuant to Ordinance No. 18-46;
e) Declaring that Defendant, ROBIN VAUGHN, violated the Faulkner Act;
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f) Requiring that Defendant, ROBIN VAUGHN, contact City employees and directors only through the Mayor or his designee pursuant to N.J.S.A. 40:69A-37.1; and
g) Granting such other relief as this Court deems equitable and just.
IT IS FURTHER ORDERED that:
1. A copy of this Order to Show Cause, Verified Complaint
and supporting Certification be served upon the Defendants, KATHY
MCBRIDE and ROBIN VAUGHN, within _______ days of the date hereof,
in accordance with R. 4:4-3 and R. 4:4-4, this being original
process; and
2. Plaintiff must file with this court proof of service of
the pleadings on the defendant no later than three days before the
return date; and
3. Defendant shall file and serve a written response to
this order to show cause and request for relief and proof of
service by __________________________, 2019. The original
documents must be filed with the clerk of the Mercer County
Superior Court. A list of these offices is provided. You must
send a copy of your opposition papers directly to Judge
___________________________, whose address is
_____________________, Room _____, ________________________
____________________________, ___________, New Jersey. You must
also send a copy of your opposition papers to the plaintiff’s
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attorney whose name and address appears above, or to the plaintiff,
if no attorney is named 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 relief
the plaintiff is seeking.
4. The Plaintiff must file and serve any written reply to
the Defendants’ order to show cause opposition by
_________________, 2019. 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 of Judge
_____________________.
5. If the Defendants do 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.
6. 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.
7. Defendants, KATHY MCBRIDE and ROBIN VAUGHN, TAKE NOTICE
that the Plaintiff has filed a lawsuit against you in the Superior
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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 day
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 list of these offices
is provided. Include a $_______ filing fee payable to the
“Treasurer State of New Jersey.” You must also send a copy of
your Answer to the plaintiff’s attorney whose name and address
appear above, or to the plaintiff, if no attorney is named
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 to show cause is not an Answer and you must file both. Please
note further: if you do not file and serve an Answer within 35
days of this Order, the court may enter a default against you for
the relief plaintiff demands.
8. If you cannot afford an attorney, you may call the Legal
Services office in the county in which you live. A list of these
offices is provided. 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 list of
these numbers is also provided.
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9. 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.
__________________________________ J.S.C.
OPPOSED [ ]UNOPPOSED [ ]1:6-2 [ ]ORAL ARGUMENT [ ]
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Edward J. Florio, Esq. (025311987)FLORIO ◆ KENNY ◆ RAVAL, LLP125 CHUBB AVENUE, SUITE 310-NLYNDHURST, NEW JERSEY 07071 (201) 659-8011Attorneys for Plaintiff, Mayor Reed Gusciora
MAYOR REED GUSCIORA, MAYOR OF THE CITY OF TRENTON,
Plaintiff
v.
KATHY MCBRIDE, ROBIN VAUGHN, JOHN DOES 1-10,
Defendants.
SUPERIOR COURT OF NEW JERSEYMERCER COUNTY: LAW DIVISIONDOCKET NO.: MER-L-
Civil Action
ORDER
This matter having been brought before the Court upon the
application of Florio Kenny Raval, L.L.P., attorneys for the
Plaintiff, Mayor Reed Gusciora, on notice to all parties of record,
and the Court having considered the matter and any opposition
hereto and for good cause shown,
IT IS on this _____ day of __________________, 2019,
ORDERED that Plaintiff’s application for a Declaratory
Judgment that Defendant, KATHY MCBRIDE, has violated Ordinance No.
18-46 of the Code of the City of Trenton is GRANTED; and it is
FURTHER ORDERED that Defendant, KATHY MCBRIDE, must
immediately relist on the City Council’s agenda any resolutions
and/or ordinances that have been previously removed from the agenda
pursuant to Ordinance No. 18-46 but which have not been relisted;
and it is
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FURTHER ORDERED that Defendant, KATHY MCBRIDE, is prohibited
from removing in the future any relisted resolutions and/or
ordinances that have already been removed once from the agenda
pursuant to Ordinance No. 18-46, including, but not limited to,
Ordinance No. 19-43, Ordinance No. 19-44, Ordinance No. 19-45,
Ordinance No. 19-46; and it is
FURTHER ORDERED that Plaintiff’s application for a
Declaratory Judgment that Defendant, ROBIN VAUGHN, has violated
the Faulkner Act is GRANTED; and it is
FURTHER ORDERED that Defendant, ROBIN VAUGHN, only be
permitted to contact City employees and directors exclusively
through the Mayor or his designee pursuant to N.J.S.A. 40:69A-
37.1; and it is
FURTHER ORDERED that a copy of the within Order shall be
served upon all parties within _____ days of the date hereof.
__________________________________ J.S.C.
OPPOSED [ ]UNOPPOSED [ ]1:6-2 [ ]ORAL ARGUMENT [ ]
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Of Counsel and on the Brief:
Edward J. Florio, Esq. (025311987)
On the Brief:
Christopher K. Harriott, Esq. (035382001)
Michael T. Wilkos, Esq. (027922011)
SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY: LAW DIVISION
DOCKET NO.: MER-L-
MAYOR REED GUSCIORA, MAYOR OF
THE CITY OF TRENTON,
Plaintiff
v.
KATHY MCBRIDE, ROBIN VAUGHN,
JOHN DOES 1-10,
Defendants.
MAYOR GUSCIORA’S BRIEF IN SUPPORT OF ORDER TO SHOW CAUSE SEEKING
A DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
FLORIO ◆ KENNY ◆ RAVAL, LLP
125 CHUBB AVENUE, SUITE 310-N
LYNDHURST, NEW JERSEY 07071
Phone: (201) 659-8011
ATTORNEYS FOR PLAINTIFF,
MAYOR REED GUSCIORA
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TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................... ii
PRELIMINARY STATEMENT.......................................... 1
STATEMENT OF FACTS............................................. 4
STANDARD OF REVIEW............................................. 4
LEGAL ARGUMENT................................................. 7
POINT I
MAYOR GUSCIORA AND THE CITY OF TRENTON WILL SUFFER
IRREPARABLE HARM IN THE ABSENCE OF AN IMMEDIATE
INJUNCTION................................................ 7
POINT II
MAYOR GUSCIORA CAN DEMONSTRATE A REASONABLE LIKELIHOOD
OF SUCCESS ON THE MERITS................................. 10
POINT III
THE SEVERE HARDSHIP TO MAYOR GUSCIORA COUPLED WITH THE
HARM TO THE PUBLIC WEIGHS IN FAVOR OF TEMPORARY
RESTRAINTS............................................... 16
CONCLUSION.................................................... 18
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TABLE OF AUTHORITIES
CASES
City Council, City of Orange Twp. v. Brown,
249 N.J. Super. 185 (App. Div. 1991) ........................ 14
Crowe v. De Gioia,
90 N.J. 126 (1982) ................................ 4, 7, 10, 16
D. Russo, Inc. v. Twp. of Union,
417 N.J. Super. 374 (App. Div. 2010) ......................... 7
McCann v. Clerk of City of Jersey City,
167 N.J. 311 (2001) ......................................... 13
ML Plainsboro Ltd. P’ship v. Twp. of Plainsboro,
316 N.J. Super. 200, 204 (App. Div. 1998) .................... 6
Mun. Council of City of Newark v. James,
183 N.J. 361 (2005) ......................................... 10
News Printing Co. v. Borough of Totowa,
211 N.J. Super. 121 (Law Div. 1986) .......................... 4
Two Guys From Harrison, Inc. v. Furman,
59 N.J. Super. 135 (Law Div. 1960) ........................... 4
Zoning Bd. of Adjustment of Sparta v. Service Elec. Cable Tel.
of New Jersey, Inc., 198 N.J. Super. 370 (App. Div. 1985) ... 16
STATUTES
N.J.S.A. 2A:16–50........................................... 1, 5
N.J.S.A. 2A:16–51.............................................. 6
N.J.S.A. 2A:16–53........................................... 5, 6
N.J.S.A. 40:69A-32............................................ 10
N.J.S.A. 40:69A-37.1....................................... 2, 13
N.J.S.A. 40:69A-38............................................ 15
N.J.S.A. 40:69A-39............................................ 15
N.J.S.A. 40:69A–43........................................ 12, 13
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PRELIMINARY STATEMENT
PLAINTIFF, MAYOR REED GUSCIORA, MAYOR OF THE CITY OF TRENTON,
(“MAYOR GUSCIORA”), seeks an Order immediately restraining and
enjoining DEFENDANTS, KATHY MCBRIDE (“MBRIDE”) and ROBIN VAUGHN
(“VAUGHN”) (hereinafter collectively “DEFENDANTS”), both of whom
are City Council Members, from taking any further illegal,
unilateral actions in violation of both the Code of the City of
Trenton and the Faulkner Act. Additionally, and/or alternatively,
MAYOR GUSCIORA also seeks declaratory relief against MCBRIDGE and
VAUGHN under the Uniform Declaratory Judgments Act, N.J.S.A.
2A:16–50, et seq.
More specifically, immediate injunctive relief is required to
restrain and enjoin MCBRIDE, the City Council President, from
continuing to improperly remove Resolutions and Ordinances from
the Agenda for City Council Meetings in violation of City Ordinance
No. 18-46. While that Ordinance allows the Council President, such
as MCBRIDE, a one-time right to remove an item from the Agenda for
further review, it also mandates that the previously removed item
must be relisted on the Agenda for next regularly scheduled Council
Meeting. MCBRIDE has regularly and routinely failed to re-list
Resolutions and Ordinances which she had previously removed from
the Agenda. MCBRIDGE’S failure to comply with the Ordinance – which
she herself voted in favor of – obstructs basic government
functions and has caused and will continue to cause irreparable
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harm to the City. In as much as MAYOR GUSCIORA is responsible,
under the Faulkner Act and City Code, for the enforcement of
Ordinances and Resolutions adopted by the City Council, he
appropriately seeks injunctive relief to require MCBRIDE to comply
with the requirements of Ordinance No. 18-46. Additionally, and/or
alternatively, MAYOR GUSCIORA seeks a declaration that MCBRIDE has
violated Ordinance No. 18-46 and directing her to comply with the
terms of same.
Immediate injunctive relief is also required to restrain and
enjoin VAUGHN from continuing to violate that portion of the
Faulkner Act, including N.J.S.A. 40:69A-37.1, which mandates that
a City Council member, such as VAUGHN, shall deal with employees
of the Department of Administration and other administrative
departments solely through the Mayor, or his designee. Despite
such clear and well-established language, VAUGHN has regularly and
routinely violated the separation of powers made explicit in the
Faulkner Act by ordering Department Directors and other City
employees to act on her behalf and demanding that these employees
provide information directly to her. VAUGHN’S actions are likely
to cause irreparable harm by usurping the executive power expressly
delegated to MAYOR GUSCIORA under the Faulkner Act and exceeding
the authority granted to the legislative branch of municipal
government under that same statute. Additionally, and/or
alternatively, MAYOR GUSCIORA seeks a declaration that VAUGHN has
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violated the Faulkner Act and directing her to comply with the
terms of same.
Accordingly, MAYOR GUSCIORA, respectfully requests that
declaratory and injunctive relief be immediately issued in order
to avoid further irreparable harm to his rights and to the City of
Trenton.
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STATEMENT OF FACTS
For a full recitation of the facts, MAYOR GUSCIORA
respectfully directs the Court’s attention to the Verified
Complaint filed herewith.
STANDARD OF REVIEW
MAYOR GUSCIORA seeks injunctive relief against MCBRIDE and
VAUGHN pursuant to R. 4:69-3, which permits this Court to enter
restraints and other relief in an action in lieu of prerogative
writs on short notice, and in accordance with the principles set
forth in Crowe v. De Gioia, 90 N.J. 126, 132 (1982). As set forth
therein, “New Jersey has long recognized . . . the power of the
judiciary to ‘prevent some threatening, irreparable mischief,
which should be averted until opportunity is afforded for a full
and deliberate investigation of the case.’” Id.
In as much as the Rules of Court do not provide for an
automatic stay when seeking an Order to Show Cause, the issuance
of a preliminary injunction in a prerogative writs action is
particularly proper. News Printing Co. v. Borough of Totowa, 211
N.J. Super. 121, 129 (Law Div. 1986)(citing Two Guys From Harrison,
Inc. v. Furman, 59 N.J. Super. 135, 138 (Law Div. 1960)).
Under Crowe, the well-established test requires that the
moving party demonstrate that: (1) an irreparable harm will result
if the injunction is not granted; (2) there exists a reasonable
probability of eventual success on the merits; and (3) in balancing
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the equities, the injury to the moving party in the absence of the
injunction outweighs the foreseeable harm to the opposing party.
Id. at 132-34.
In the present matter, and as outlined below, MAYOR GUSCIORA
satisfies all of the relevant criteria for granting of preliminary
relief. MCBRIDE’S failure to adhere to Ordinance No. 18-46 deprives
the City and its residents of a well-functioning and democratic
government. Likewise, VAUGHN’s refusal to comply with the Faulkner
Act directly infringes on MAYOR GUSCIORA’s rights under that
statute and is violative of the basic principles of separations of
power. As such, irreparable harm exists and outweighs any
foreseeable harm in granting the injunctive relief. In fact, no
harm will result to MCBRIDE or VAUGHN in as much as the injunctive
relief sought simply requires both individuals to comply with the
law.
MAYOR GUSCIORA also seeks declaratory relief pursuant to the
Uniform Declaratory Judgments Act, N.J.S.A. 2A:16–50 et seq.,
(“Act”) provides in relevant part:
A person interested . . . whose rights, status
or other legal relations are affected by a
statute, municipal ordinance, contract or
franchise, may have determined any question of
construction or validity arising under the
instrument, statute, ordinance, contract or
franchise and obtain a declaration of rights,
status or other legal relations thereunder.
[N.J.S.A. 2A:16–53.]
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The Act “is declared to be remedial” and should be liberally
construed to accomplish its general purpose. N.J.S.A. 2A:16–51.
Its “mandate is to afford relief from uncertainty with respect to
a party’s rights[.]” ML Plainsboro Ltd. P’ship v. Twp. of
Plainsboro, 316 N.J. Super. 200, 204 (App. Div. 1998).
In the present matter, MAYOR GUSCIORA seeks a declaration as
to the respective rights and responsibilities under City Ordinance
No. 18-46 and the Faulkner Act. In as much as MCBRIDE has refused
to comply with the terms of both, a justiciable controversy for
purposes of declaratory relief pursuant N.J.S.A. 2A:16–53.
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LEGAL ARGUMENT
POINT I
MAYOR GUSCIORA AND THE CITY OF TRENTON WILL SUFFER IRREPARABLE
HARM IN THE ABSENCE OF AN IMMEDIATE INJUNCTION
As set forth below in detail, MAYOR GUSCIORA will suffer
irreparable harm in the absence of an injunction prohibiting
MCBRIDE from further violating Ordinance No. 18-46 through her
undemocratic manipulation of the Council’s agenda. Similarly,
MAYOR GUSCIORA will also suffer irreparable harm in the absence of
an injunction prohibiting VAUGHN from further illegal and improper
direct contact with the City’s Department Directors and other
employees.
“Irreparable harm” is established by proof of a substantial
injury to a material degree, which cannot be adequately addressed
by monetary damages. Crowe, 90 N.J. at 132-33. In matters of public
importance, such as the adoption or enforcement of ultra vires
resolutions or ordinances, the harm to the public and need for
restraints is particularly well-settled. See D. Russo, Inc. v.
Twp. of Union, 417 N.J. Super. 374, 387 (App. Div. 2010)(granting
temporary restraints and then a preliminary injunction against
enforcement of an ordinance, which remained in effect throughout
the course of the litigation).
In the present matter, irreparable harm exists, and will
continue to exist, if MCBRIDE and VAUGHN are not immediately
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restrained and enjoined from continuing to violate Ordinance No.
18-46 and the Faulkner Act, respectively. MCBRIDE’s outright
refusal to comply with the Ordinance – which she herself supported
at the time of adoption – impedes MAYOR GUSCIORA’s ability to
effectively govern the City of Trenton. In as much as the City can
operate only by Resolution and Ordinance, MCBRIDE’S refusal to re-
list items which she previously removed from the Council’s Agenda
causes gridlock and prevents the City from properly functioning as
a municipality. MCBRIDE has, through her actions, essentially
claimed for herself a de-facto permanent veto over agenda items
which she does presumably does not support. In refusing to bring
these items before the Council for a proper vote, her actions do
great violence to the democratic process, impeding upon MAYOR
GUSCIORA’s statutory authority and depriving the citizens of the
City of a functioning municipal government.
Likewise, VAUGHN’s continued and improper direct-contact with
Department Directors and employees impedes MAYOR GUSCIORA’s
ability to effectively govern the City of Trenton and, practically,
causes unnecessary confusion among those employees. Under the
Faulkner Act, with certain exceptions not relevant to the present
matter, it is MAYOR GUSCIORA and MAYOR GUSCIORA alone who is
responsible for the direction and control of those person working
in City Hall. As such, it is more than reasonable that MAYOR
GUSCIORA should expect that those employees, in particular
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Department Directors, will be able to carry out his vision and
directives without unnecessary inference from VAUGHN or any other
member of the City Council. In many instances, Councilpersons may
have interests or directives which differ from those of MAYOR
GUSCIORA, and his executive authority under the Faulkner Act has
and will continue to be irreparably harmed if VAUGHN is permitted
to insert herself into the daily operations of municipal
government. The elementary concept of separation of executive and
legislative functions is the cornerstone of the Faulkner Act and
would be irreparably harmed unless immediate restraints are issued
against VAUGHN. Her actions impede MAYOR GUSCIORA’s ability to
govern, which in turn deprives the residents of the City of the
form of government they choose. This is harm that cannot be
remedied through monetary damages and should be immediately
enjoined.
Accordingly, MAYOR GUSCIORA respectfully requests immediate
injunctive relief prohibiting the continuation of violations of
Ordinance No. 18-46 and the Faulkner Act by MCBRIDE and VAUGHN.
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POINT II
MAYOR GUSCIORA CAN DEMONSTRATE A REASONABLE LIKELIHOOD OF
SUCCESS ON THE MERITS
MAYOR GUSCIORA can also demonstrate a reasonable probability
of success on the merits as the respective actions of MCBRIDE and
VAUGHN clearly violate both Ordinance No. 18-46 and the Faulkner
Act. As such, immediate injunctive relief is warranted.
Again, a party seeking temporary injunctive relief must
demonstrate a reasonable probability of eventual success on the
merits of the claim. Crowe, supra, 90 N.J. at 133. Mere doubt as
to the validity of the claim is not an adequate basis for refusing
to maintain the status quo. Ibid. Actions of a City Council should
be invalidated when they are contrary to law or usurp the authority
that has been specifically vested to the Mayor and the executive
branch. N.J.S.A. 40:69A-32(b); Mun. Council of City of Newark v.
James, 183 N.J. 361, 371 (2005).
In the present matter, the undisputed facts of the Verified
Complaint leave no doubt that MAYOR GUSCIORA will successfully
demonstrate that MCBRIDE violated Ordinance No 18-46 by failing to
relist items she removed from the agenda on the next regularly
scheduled meeting and that VAUGHN violated the Faulkner Act,
through her repeated and intentional direct interaction with the
City administration and its employees.
Specifically, the Verified Complaint makes clear that
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MCBRIDE, as Council President, exceeded the scope of the authority
and violated Ordinance No. 18-46, which establishes the procedure
for setting and reviewing the City Council’s agenda for each
meeting. Again, Ordinance No. 18-46 provides as follows:
On the Tuesday proceeding each Council
meeting, the Council President, or the Vice
President, or the Council President’s designee
if neither shall be available, shall make a
review of the docket with the Business
Administrator, the City Clerk and the Law
Director and a representative designated by
the Mayor. The Council President may remove an
item from the Council agenda during docket
review, for further study or information,
provided that the removal of any items from
the docket must be listed on the next regular
scheduled Council meeting docket.
(See Exhibit A to Verified Complaint.)
As set forth in the Verified Complaint, on at least twelve
(12) occasions, MCBRIDE has unilaterally obstructed the government
of the City of Trenton by removing items from the Council Agenda
without relisting them for the next regularly scheduled meeting as
required by Ordinance 18-46. (See Verified Complaint, ¶12-22.)
MCBRIDE’S actions clearly violate the Ordinance and no exception
exists which would exempt her from having to comply with the
requirement of same.
Moreover, on at least one occasion, MCBRIDE has also violated
a separate provision of Ordinance No. 18-46 which mandates that
“[a]ny Resolution or Ordinance put forth by any Council member
which has been defeated, shall not be re-introduced for a period
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of one year following the vote on said Ordinance or Resolution.”
(See Exhibit A to Verified Complaint.) For example, Resolution No.
19-440, A RESOLUTION APPOINTING MEMBERS TO THE TRENTON ZONING
BOARD, was voted upon and rejected by the Council on August 1,
2019. Nonetheless, MCBRIDE allowed the appointments of the two
individuals who previously been rejected to be reconsidered under
Resolution No. 19-451 on September 5, 2019. Her action was in
direct violation of the one-year reintroduction provision of
Ordinance No. 18-46. (See Verified Complaint, ¶25-26.)
Likewise, MAYOR GUSCIORA has a more than reasonable
likelihood of success on the merits of his claim against VAUGHN as
her actions clearly exceed the legislative authority of the Council
under the Faulkner Act and impedes upon the executive functions
granted to MAYOR GUSCIORA thereunder. The language of the Faulkner
Act is clear and without dispute in this regard. Specifically,
N.J.S.A. 40:69A-32 of the Faulkner Act provides administrative or
executive functions assigned by general law to the governing body
shall be exercised by the Mayor, and any legislative functions
assigned by general law to the governing body shall be exercised
by the council. Id.
Under the Faulkner Act, a municipality acting through a Mayor-
Council form of government is organized through administrative
departments. See N.J.S.A. 40:69A–43(a). The Act requires that
there be a department of administration and gives the municipality
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the discretion to create other departments, not to exceed nine in
number. Ibid. The administrative functions, powers and duties of
the municipality, other than those vested in the municipal clerk
and tax assessor, are to be assigned to the various departments
established. Ibid. Each department is headed by a director who is
appointed by the mayor with the advice and consent of the council.
N.J.S.A. 40:69A–43(b). The Mayor, as Chief Executive, is
responsible for enforcing the charter and ordinances of the
municipality and all general laws. The Mayor is also responsible
for supervising the departments of the municipal government.
N.J.S.A. 40:69A-43. The Council is limited to legislative
functions and only has the power to appoint the Municipal Clerk.
N.J.S.A. 40:69A–38.
Pursuant to the Faulkner Act, members of the municipal council
are not permitted to have direct contact with City employees.
N.J.S.A. 40:69A-37.1 specifically states:
In any municipality adopting the mayor-council
plan of government, the municipal council
shall deal with employees of the department of
administration and other administrative
departments solely through the mayor or his
designee. All contact with the employees, and
all actions and communications concerning the
administration of the government and the
provision of municipal services shall be
through the mayor or his designee, except as
otherwise provided by law.
See also McCann v. Clerk of City of Jersey City, 167 N.J. 311, 330
(2001)(“if elected council members desire to communicate with
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municipal employees in a mayor-council municipality, they must do
so ‘solely through the mayor or his designee.’”); City Council,
City of Orange Twp. v. Brown, 249 N.J. Super. 185, 187 (App. Div.
1991)(“The council by statute is limited in its role concerning
municipal employees, and ‘shall deal with employees of the
department of administration and other administrative departments
solely through the mayor . . . ’”)
In the present matter, as more fully set forth in the Verified
Complaint, VAUGHN has usurped MAYOR GUSCIORA’S express authority
under the Faulkner Act through her dealings with City employees.
For example, VAUGHN has ordered employees to undertake certain
actions, demanded information, communicated with employees,
scheduled meetings with Department Directors without the Mayor
present, and even contacted City vendors on behalf of the City.
(See Verified Complaint, ¶39-49.)
VAUGHN also violated MAYOR GUSCIORA’S executive powers under
the Faulkner Act when she contacted the State of New Jersey
Department of Environmental Protection (NJDEP) and the State of
New Jersey Department of Community Affairs, without the
authorization of MAYOR GUSCIORA, for the purpose of scheduling a
meeting with the NJDEP Commissioner, Catherine R. McCabe,
regarding the reorganization and staffing of Trenton Water Works.
(See Verified Complaint, ¶51). Trenton Water Works is organized as
a Department of the City of Trenton, and so Defendant VAUGHN’s
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actions violated the Faulkner Act, N.J.S.A. 40:69A-38 and N.J.S.A.
40:69A-39.
Based on the clear delineation between statutory authority
between the Mayor and the City Council and well-settled case law,
MAYOR GUSCIORA has established more than a reasonable likelihood
of success on the merits.
Accordingly, for the reasons set forth herein, MAYOR GUSCIORA
respectfully submits that he has established a likelihood of
success on the merits and that immediate injunctive relief should
be imposed against MCBRIDE and VAUGHN.
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POINT III
THE SEVERE HARDSHIP TO MAYOR GUSCIORA COUPLED WITH THE HARM TO
THE PUBLIC WEIGHS IN FAVOR OF TEMPORARY RESTRAINTS
MAYOR GUSCIORA also satisfies the final prong for injunctive
relief, which weighs the relative hardship to the parties in
granting or denying relief. In as much as MAYOR GUSCIORA seeks
only to have MCBRIDE comply with the very Ordinance she voted to
adopt and to have VAUGHN comply with law she swore an oath to
uphold, the irreparable harm to MAYOR GUSCIORA far outweighs any
minor imposition upon either individual which might result from
the imposition of injunctive restraints
In this portion of the Crowe analysis, the Court must balance
the equities involved to determine whether the possible harm to
the defendant resulting from the issuance of an injunction is
outweighed by the harm threatening the plaintiff should the
injunction not issue. See Zoning Bd. of Adjustment of Sparta v.
Service Elec. Cable Television of New Jersey, Inc., 198 N.J. Super.
370, 379 (App. Div. 1985).
In the present matter, the severe, irreparable harm to MAYOR
GUSCIORA, coupled with the irreparable harm to the public, weighs
strongly in favor of the entry of temporary injunctive restraints.
If MCBRIDE and VAUGHN are permitted to continue their illegal
actions, they will have unilaterally claimed for themselves more
authority to govern the affairs of the City than has been granted
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to them by ordinance or statute. As set forth in detail in Point
I, infra, this irreparably harms MAYOR GUSCIORA’s ability to
effectively govern the City of Trenton and infringes upon the
democratic process. In contrast, neither MCBRIDE or VAUGHN will
not be harmed in any fashion whatsoever by the issuance of an
injunction. MAYOR GUSCIORA is, after all, simply asking the Court
to enforce the City’s own ordinance, which MCBRIDE herself
introduced and supported, as well as the Faulkner Act, which is
the enabling legislation for the City of Trenton’s government and
which VAUGHN swore an oath to uphold. If either individual feels
they are being harmed by being asked to follow the law, they should
immediately resign their position.
Accordingly, in as much as the irreparable harm to MAYOR
GUSCIORA and the City of Trenton will vastly outweigh the harm, if
any, to MCBRIDE and VAUGHN, immediate injunctive relief is
required.
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CONCLUSION
Accordingly, for the reasons set forth herein, MAYOR GUSCIORA
respectfully requests that the Court immediately restrain and
enjoin MCBRIDE and VAUGHN from continuing to violate Ordinance No.
18-46 and the Faulkner Act.
DATED: October 10, 2019
FLORIO ◆ KENNY ◆ RAVAL, LLP
/s/ Edward J. Florio ______________________
EDWARD J. FLORIO, ESQ.
ATTORNEYS FOR PLAINTIFF,
MAYOR REED GUSCIORA
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Civil Case Information Statement
Case Details: MERCER | Civil Part Docket# L-002003-19
Case Caption: GUSCIORA MAYORREED VS MCBRIDE
KATHY
Case Initiation Date: 10/10/2019
Attorney Name: EDWARD JOSEPH FLORIO
Firm Name: FLORIO KENNY RAVAL LLP
Address: 125 CHUBB AVE 310-N
LYNDHURST NJ 07071
Phone: 2016598011
Name of Party: PLAINTIFF : GUSCIORA, MAYORREED
Name of Defendant’s Primary Insurance Company (if known): None
THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCECASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION
Do parties have a current, past, or recurrent relationship? YES
If yes, is that relationship: Other(explain) Trenton Government
Does the statute governing this case provide for payment of fees by the losing party? NO
Use this space to alert the court to any special case characteristics that may warrant individual management or accelerated disposition:
Do you or your client need any disability accommodations? NOIf yes, please identify the requested accommodation:
Will an interpreter be needed? NOIf yes, for what language:
Please check off each applicable category: Putative Class Action? NO Title 59? NO
I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b)
10/10/2019Dated
/s/ EDWARD JOSEPH FLORIOSigned
Case Type: ACTIONS IN LIEU OF PREROGATIVE WRITS
Document Type: Verified Complaint
Jury Demand: NONE
Is this a professional malpractice case? NO
Related cases pending: NO
If yes, list docket numbers: Do you anticipate adding any parties (arising out of same transaction or occurrence)? NO
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