MER-L-002003-19 10/10/2019 4:55:02 PM Pg 1 of 23 Trans ID ... · MER-L-002003-19 10/10/2019 4:55:02 PM Pg 5 of 6 Trans ID: LCV20191856960 . 6 9. The court will entertain argument,

MER-L-002003-19 10/10/2019 4:55:02 PM Pg 1 of 23 Trans ID: LCV20191856960























1

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


2

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;


3

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


4

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


5

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.


6

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 [ ]


1

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


2

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 [ ]


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


i

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


ii

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


1

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


2

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


3

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.


4

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


5

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.]


6

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.


7

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


8

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


9

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.


10

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


11

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


12

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


13

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


14

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


15

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.


16

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


17

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.


18

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




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


Documents

MER-L-002003-19 10/10/2019 4:55:02 PM Pg 1 of 23 Trans ID ... · MER-L-002003-19 10/10/2019 4:55:02 PM Pg 5 of 6 Trans ID: LCV20191856960 . 6 9. The court will entertain argument,