OCEAN CITY — After spending years of their time and thousands of their dollars, a few city residents are no closer to their goal of protecting the integrity of the local election process.
On Aug. 6, an appellate court dismissed an appeal by nine local citizens who were asking the court to make a ruling that Ocean City would be allowed to enact an ordinance setting up a publicly funded election campaign trust.
In 2006, the residents had proposed an ordinance to city council that would have provided for an annual $150,000 contribution from the city to fund campaigns for local elections to minimize the influence of special interest groups. The measure would also allow for donations from individuals of up to $5,000 a year.
The residents’ attorney Paul S. Ryan, of the Washington, D.C. nonprofit Campaign Legal Center, which works in the areas of campaign finance and government ethics, took on the residents’ appeal for free but they paid for a private attorney at the trial court level.
Ryan told the Herald that the residents had the support of a majority of council prior to the first reading of the ordinance, but then something went wrong.
Based on the advice of their lawyer, three members of the Ocean City governing body voted against the measure, while three others voted for it.
“The real travesty in this case is that the city’s former solicitor Gerald Corcoran advised the governing body that in his legal opinion, the ordinance would be illegal,” Ryan said. “And if they didn’t accept his advice, they should ask the court for an opinion.”
Ryan said Corcoran based his opinion entirely on a telephone conversation with a state Department of Community Affairs (DCA) employee, who said the city lacked the authority to enact a public election financing program and the proposed ordinance would be contrary to state law. Corcoran told the Herald that the DCA told him if the city passed the proposed measure, the state would not approve the city’s budget.
After council failed to introduce the ordinance, the residents took the solicitor’s advice and asked the court for a ruling.
Judge Joseph Visalli held that neither the state Constitution nor any laws specifically prohibits the city from enacting the campaign ordinance, but “the city does not have the authority to create the fund required by the proposed ordinance. The City cannot accept conditional donations which are earmarked for an unauthorized purpose.”
Visalli denied their motion for a summary judgment and the citizens appealed.
On appeal, the plaintiffs argued that the city possesses the authority to enact and implement the proposed ordinance and that state law would not preempt it. The city maintained that it did not have the authority to enact the measure.
In the end, the appeals court did not make a judgment on that issue. Instead, it decided that since the ordinance was never approved on first reading, it was still “abstract.”
“Plaintiffs have not presented a case or controversy for adjudication by a court; what plaintiffs have presented is a request for and advisory opinion.”
So the appeal was dismissed.
Corcoran, who was glad the city won this decision, said that if council had introduced the ordinance, the court likely would have had to make a judgment regarding the city’s ability to enact such an ordinance. Corcoran didn’t say whether he thought the campaign ordinance was a good idea or a bad idea. He just said he didn’t think the city could enact such a measure.
Not everybody was happy with the decision.
“It’s a shame because my clients will probably be before the same court in a few years,” Ryan said. “All because of some bad advice from an attorney.”
Ryan noted that the court did not say that Ocean City doesn’t have the authority to enact the ordinance. “We still believe that campaign finance reform is right for Ocean City,” Ryan said.
“At first I was absolutely crushed when I read the decision,” said Dr. Steven Fenichel, a local dermatologist who was one of the plaintiffs.
“But after reading between the lines, I think the court gave us some direction to move forward.”
Fenichel said his group is considering the formation of a committee to garner signatures on a referendum petition that would force the city to adopt the measure or submit the question to voters. As a Faulkner Act municipality, Ocean City allows referenda initiated by private citizens, Fenichel said.
“A declaratory judgment action commenced at that time has the requisite concreteness and true adversity,” the appellate decision stated. “It also allows the ordinance to be measured by the law in effect at that time.”
The group of Ocean City citizens isn’t alone in their fight.
According to Fenichel, Ryan’s group is going to rewrite the proposed ordinance to bring it up to date with current law and New Jersey Appleseed, another nonprofit election reform group, will help get the petition drive going.
Contact Hart at (609) 886-8600 Ext 35 or at: jhart@cmcherald.com
Lower Township – Who are these people that are obvious experts on trash cans and leaf pick-up? Maybe they don't have any trash to put out or leaves in their yard!!
