Tuesday, September 14, 2010

My town won't obey the law. What do I do?

Sometimes I get questions that I think might be of general interest. Here's one such question and my answer to it.

QUESTION:

My municipal government does not obey the law and does not care that it does not obey the law. For example, state law, specifically N.J.S.A. 40A:9-139, requires each municipality to pass an ordinance providing for the appointment of a municipal attorney. Despite this law, my town doesn't have such an ordinance and refuses to enact one. My complaints to the Attorney General, County Prosecutor and various state agencies haven't helped and I don't have money to hire an attorney. What can I do?

ANSWER:

You could consider filing a lawsuit pro se, i.e. without a lawyer. That's what Frank Bright, an activist in New Brunswick, did in 2003 when the Mayor refused to appoint citizens to certain boards and committees even though he was directed to do so by a municipal ordinance. Bright won his lawsuit and his victory was reported in the media (See, e.g. "City told to put people on nonexistent panels," by Sharon Waters, Home News and Tribune, February 27, 2004).

If the law compels a public official or agency to perform a ministerial act (i.e. an act that the official or agency doesn't have the discretion not to perform), the court can order the agency or official to perform the act. And, the way one goes about applying to the court for such an order is to file a suit "In Lieu of Prerogative Writ of Mandamus."

In Bright's case, the Court ruled that although the Mayor had discretion to choose who would serve on the various boards and committees, he was required by law to appoint somebody. In your case, it appears that you could similarly sue your governing body and the court should require them to enact the required ordinance.

Several years ago, I obtained a copy of Bright's lawsuit paperwork from the courts, and have now posted those records on-line here in order to show exactly how Bright worded his suit, how New Brunswick responded, how Bright replied to the City's response and how the Court ruled. Readers will note that the the judge originally decided to not make New Brunswick reimburse Bright for his court costs but later changed his mind. So, in the end, Bright succeeded in making the City of New Brunswick follow the law and got all his court costs paid by the City.

I feel compelled to include some sort of disclaimer admonishing readers that filing a lawsuit is serious business and that they should contact an attorney, etc. While that is true, I also believe that there are times when citizens who can't afford a lawyer to correct official neglect or wrongdoing need to stand up for their rights. So, do your research and file a pro se suit only if you believe it's lawful and justified.

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