DANIEL TUMPSON, RUSSELL HOOVER, ERIC VOLPE, CHERYL FALLICK AND JOEL HORWITZ, PLAINTIFFS-APPELLANTS AND CROSS-RESPONDENTS, v. JAMES FARINA, IN HIS CAPACITY AS HOBOKEN CITY CLERK, AND THE CITY OF HOBOKEN, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS, AND MILE SQUARE TAXPAYER ASSOCIATION 2009, INC., GINA DENARDO, INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED AND 611-613, LLC, INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED, INTERVENORS-RESPONDENTS.
Supreme Court of New Jersey
Argued March 31, 2014-Decided July 31, 2014.
95 A.3d 210
Not Participating-Justice ALBIN and Judge CUFF (temporarily assigned).
Victor A. Afanador argued the cause for respondents and cross-appellants (Lite DePalma Greenberg, attorneys; Mr. Afanador and Jeffrey A. Shooman, on the briefs).
Sean A. Smith argued the cause for respondents (Brach Eichler, attorneys).
Edward W. Purcell, Associate Counsel, argued the cause for amici curiae New Jersey State League of Municipalities and New Jersey Institution of Local Government Attorneys (William J. Kearns, Jr., General Counsel, attorney).
Justice ALBIN delivered the opinion of the Court.
In many municipalities, citizens have the right to put to a popular vote an ordinance passed by a local legislative body. This process-known as a referendum-allows voters to have “the final say in approving or rejecting an ordinance at the ballot box.” In re Referendum Petition to Repeal Ordinance 04-75, 192 N.J. 446, 450, 931 A.2d 595 (2007). The right of referendum took root more than a century ago, during the Progressive Era, as a response to the increasing influence that special interests played in the passage of legislation. To counteract that influence, the right of referendum armed citizens with the power to appeal directly to the democratic process.
In 1911, Governor Woodrow Wilson signed into law the Walsh Act, L. 1911 c. 221, the first New Jersey law conferring the right of referendum. The Walsh Act extended the right of referendum to citizens in municipalities organized under a commission form of government. Today, citizens in municipalities organized under the Faulkner Act also possess that valuable right.
In this case, a city clerk in a Faulkner Act municipality refused to accept for filing a petition for referendum on the ground that the petition did not have a sufficient number of qualifying signatures. Members of a Committee of Petitioners brought an action in lieu of prerogative writ to have the challenged ordinance put on the ballot. They also brought suit under the New Jersey Civil Rights Act,
The Appellate Division affirmed all but the trial court‘s finding of a civil rights violation. The Appellate Division determined that the Committee members did not suffer a deprivation of a right because the court provided the ultimate remedy-the referendum. Accordingly, the award of attorney‘s fees was vacated.
We now hold that the city clerk violated the right of referendum guaranteed by the Faulkner Act. We also hold that the violation of that right deprived the Committee members-and all of the city‘s citizens-of a substantive right protected by the Civil Rights Act. The refusal of the city clerk to accept the filing of the referendum petition constituted the deprivation of a substantive right. The vindication of that right under the Civil Rights Act entitled the Committee members to an award of attorney‘s fees. We therefore affirm in part and reverse in part the judgment of the Appellate Division.
I.
A.
The facts in this case are not in dispute. In February 2011, the Hoboken City Council introduced Ordinance Z-88 to amend the city‘s rent control code. The ordinance limits the remedies for tenants, living in rent-controlled units, who seek recoupment for rent overcharges. In particular, under the ordinance, a landlord does not have to answer a tenant‘s request for the calculation of rent paid more than two years earlier or to refund rent overcharges that occurred more than two years earlier. The Council adopted the ordinance and, on March 11, 2011, the mayor approved it.
Daniel Tumpson called the Hudson County Clerk‘s Office and asked for the “total votes cast in [Hoboken] at the last election” of members of the General Assembly. The County Clerk‘s Office told him that the last General Assembly election was held in 2007 and that 6480 votes were cast in Hoboken. That information was mistaken because the last General Assembly election was held in November of 2009.
The County Clerk‘s Office error would have significant consequences. Based on the 2007 election tally, the signatures of 972 qualified voters were necessary for a referendum whereas based on the 2009 election tally, the required number was either 1967 or 2189 qualified signatures. The uncertainty about the 2009 numbers is because the City Clerk, in two separate letters, provided plaintiffs with conflicting figures for the number of votes cast in Hoboken in that election, 13,112 votes (April 1, 2011 letter) and 14,593 votes (July 7, 2011 letter).1
Plaintiffs Daniel Tumpson, Russell Hoover, Eric Volpe, Cheryl Fallick and Joel Horwitz formed a Committee of Petitioners to bring a referendum challenge to Ordinance Z-88. On March 30, 2011, nineteen days after the ordinance was enacted, plaintiffs filed with defendant James Farina, City Clerk of Hoboken, a referendum petition containing 1442 signatures. Plaintiffs relied on the 2007 vote tally. The Clerk refused to accept for filing the referendum petition because it lacked the minimum number of signatures based on the 2009 vote count.
B.
On May 6, 2011, plaintiffs filed an action in lieu of prerogative writ seeking, among other things, an order directing the Clerk to certify the rent-control referendum petition as valid and to suspend Ordinance Z-88 until the referendum was approved or disapproved by the voters. Plaintiffs also sought relief under the New Jersey Civil Rights Act,
On June 14, 2011, the trial court granted plaintiffs partial relief, finding that the Clerk‘s refusal to accept for filing the referendum petition violated provisions of the Faulkner Act. The court maintained that once the petition was delivered to the Clerk, “it became his duty under the provisions of the statute to file” the petition and examine its sufficiency. The court ordered the Clerk to process both the petition and amended petition and to determine their sufficiency in accordance with the applicable statutes. The court also noted that if the Clerk deemed the petition to be insufficient, the statute permitted plaintiffs ten days to amend with a supplemental petition. The court did not address the civil-rights claim.
On July 7, the Clerk forwarded a letter to plaintiffs advising that only 1573 of the signatures on the original petition and supplemental filing were valid, falling short of the 2189 signatures required to certify the petition. The Clerk concluded that because
On July 18, plaintiffs submitted an additional 844 signatures to supplement the referendum petition. On July 25, the Clerk determined that 651 of those signatures were valid, bringing the total number of valid signatures from all three submissions to 2224, more than the fifteen percent required for the referendum to proceed. The Clerk, however, rejected the referendum petition because plaintiffs had “not submitted these signatures in a timely manner.”
At this point, the procedural history becomes a tangle of motions and appeals on the trial and appellate levels. A blow-by-blow description of the litigants’ maneuvers is not necessary for our purposes. Suffice it to say, the matter was remanded to the trial court for a ruling on plaintiffs’ motion to enforce litigants’ rights and for a ruling on the civil-rights claim. On August 25, the court ordered the Clerk to certify the petition and enjoined enforcement of the ordinance pending a “repeal of the ordinance by [a] vote of the council or approval or disapproval of the ordinance by the voters,” quoting On October 24, the trial court granted summary judgment in favor of plaintiffs on their civil-rights claim. The court found that defendants Hoboken and the City Clerk “violated Plaintiffs’ substantive right under the referendum laws and are therefore liable” under On November 8, 2011, the ordinance was submitted to the voters of Hoboken. The voters approved the ordinance. Defendants appealed. The Appellate Division identified two issues: whether the Hoboken City Clerk failed to comply with the referendum provisions of the Faulkner Act and, if so, whether that failure constituted a violation of the New Jersey Civil Rights Act, The appellate panel observed that under the framework of the Faulkner Act, a committee of petitioners is allowed to submit a referendum petition and then, if the petition is defective, to file supplemental papers to amend the petition. Id. at 179. The panel determined that “[a] municipal clerk lacks the discretion to refuse to file a petition, even if the signatures thereon are less than the mandated fifteen percent of qualified voters.” Ibid. From its review of the statutory scheme, the panel was “satisfied that the Legislature intended that petitioners, as here, should enjoy the right to amend an insufficient petition for referendum, even if the original petition did not contain signatures from fifteen percent of qualified voters.” Id. at 180. For that reason, the panel concluded that the Clerk‘s “refusal to file the original petition was plainly contrary to [ Despite this statutory violation, the panel did not find that defendants “deprived” plaintiffs of a substantive statutory right protected by Plaintiffs essentially argue that, under the reasoning of the Appellate Division, had they not sought injunctive relief to vindicate their right of referendum and to put the ordinance on the ballot, they would have suffered the deprivation of a substantive right under the Civil Rights Act, but because they succeeded in securing judicial relief they are now “perversely penalized” by the denial of attorney‘s fees. This strained interpretation of the Civil Rights Act, plaintiffs suggest, will not further the goal of encouraging lawyers to undertake cases that will vindicate the rights of clients who otherwise cannot afford the high cost of access to the civil justice system. The award of attorney‘s fees, plaintiffs maintain, is the inducement to take these difficult and costly cases. Echoing this position, amicus curiae ACLU insists that the New Jersey Civil Rights Act, like other fee-shifting statutes, is “designed to attract competent counsel” to represent “plaintiffs with bona fide claims” of “infringement of statutory rights,” (quoting Coleman v. Fiore Bros., 113 N.J. 594, 598, 552 A.2d 141 (1989)). Here, according to the ACLU, plaintiffs were the prevailing party under Defendants City Clerk and City of Hoboken argue that plaintiffs’ claim is moot because plaintiffs received all the judicial relief to which they were entitled-a vote on the ordinance-and therefore “the Appellate Division had no warrant to reach out and decide the underlying issues.” Defendants also maintain that the Appellate Division erred in its interpretation of Amici curiae League of Municipalities and Institution of Local Government Attorneys, in a joint brief, urge this Court to narrowly construe the protections of the New Jersey Civil Rights Act, which provides relief to “[a]ny person who has been deprived of any substantive rights secured by the Constitution or laws of this State,” The Court must address two issues: whether the City Clerk violated the referendum provisions of the Faulkner Act by refusing to file a petition, which on its face lacked signatures of fifteen percent of the number of voters who cast ballots for members of the General Assembly in Hoboken in 2009, and, if so, whether the City Clerk deprived plaintiffs of a substantive statutory right protected by the New Jersey Civil Rights Act, thus entitling them to attorney‘s fees. Defendants initially argue that the issues before this Court are moot because the ordinance challenged in the referendum petition was put to a vote. The mootness argument fails because plaintiffs still contend that they are entitled to attorney‘s fees as the prevailing party on their civil-rights claim, see Before discussing the referendum provisions of the Faulkner Act, In 1911, Governor Woodrow Wilson signed into law the Walsh Act, currently New Jersey‘s initiative and referendum were the product of a larger movement that had been sweeping the country during the Progressive Era of the late Nineteenth and early Twentieth Centuries. K.K. DuVivier, Out of the Bottle: The Genie of Direct Democracy, 70 Alb. L.Rev. 1045, 1045 (2007). Reformers proposed the referendum as a democratic antidote against special-interest control of the legislative process. Benjamin Parke De Witt, The Progressive Movement 214 (1915). Indeed, many perceived that “state legislatures were no longer representative of the people, but were under the dominance of political rings and the moneyed interests.” Cyclopedia of American Government 179 (Andrew C. McLaughlin ed., 1914). In California, for example, the Southern Pacific Railroad Company, at the end of the Nineteenth Century, was accused of “attempting to name and control virtually every candidate for every political office from governor on down.” Spencer C. Olin, Jr., California‘s Prodigal Sons 2 (1968). “[T]o wrest control of the political process from private interests,” California adopted a constitutional amendment authorizing initiatives and referendums in 1911. James E. Castello, Comment, The Limits of Popular Sovereignty: Using the Initiative Power to Control Legislative Procedure, 74 Calif. L. Rev. 491, 502-03 (1986). Thus, the referendum in New Jersey, as elsewhere, was deemed “an exercise in democracy affording the people the last word if they choose to take a stand against the wisdom of an ordinance that the government has enacted.” In re Petition for Referendum on City of Trenton Ordinance 09-02, 201 N.J. 349, 352, 990 A.2d 1109 (2010). Between 1911 and 1950, over sixty municipalities, including Hoboken, adopted the commission form of government, giving over forty percent of the State‘s population the right to petition for a referendum. State Comm. on Cnty. & Mun. Gov‘t, Modern Forms of Municipal Government 49-50 (May 1992). In 1950, the Our primary role here is one of statutory interpretation, construing various provisions of the Faulkner Act, In construing any statute, we must give words “their ordinary meaning and significance,” recognizing that generally the statutory language is “the best indicator of [the Legislature‘s] intent.” DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005) (citations omitted); see also On the other hand, if a plain reading of the statutory language is ambiguous, suggesting “more than one plausible interpretation,” or leads to an absurd result, then we may look to extrinsic evidence, such as legislative history, committee reports, and contemporaneous construction in search of the Legislature‘s intent. Id. at 492-93 (citing Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75, 861 A.2d 123 (2004); Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 392-93, 774 A.2d 495 (2001)). Last, in keeping with our previous directives, “the referendum statute in the Faulkner Act should be liberally construed” for the purpose of “promot[ing] the ‘beneficial effects’ of voter participation.” In re Ordinance 04-75, supra, 192 N.J. at 459 (quoting Retz v. Mayor & Council of Saddle Brook, 69 N.J. 563, 571, 355 A.2d 189 (1976)). With those legal principles in mind, we turn to the relevant statutes. Our first task is to determine whether the City Clerk violated the Faulkner Act, With that overview, we now examine the statutes at issue. If, within the twenty-day grace period before the ordinance takes effect, a petition protesting against the passage of such ordinance shall be filed with the municipal clerk and if the petition shall be signed by a number of the legal voters of the municipality equal in number to at least 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected, the ordinance shall be suspended from taking effect until proceedings are had as herein provided. [ The requirement that the petition “shall be filed with the municipal clerk” imposes on plaintiffs the duty to deliver the documents challenging the ordinance. Nothing in the statute suggests that the City Clerk can refuse to accept the petition for filing. Had the statute‘s drafters intended a different result, the provision would read that the petition “shall be filed by the municipal clerk.” This construction of Second, the Clerk also must verify that only “legal voters” placed their signatures on the petition, Last, if the Clerk finds that either the initial or supplemental petition “filed with him in accordance with [the Faulkner Act] is sufficient, the clerk shall submit the same to the municipal council without delay.” We conclude that the various intersecting statutes contemplate a two-step process for validating a referendum petition. If the initial petition is found insufficient, then a corrective, supplemental petition may be filed. The statutory scheme does not indicate that one kind of deficiency in an initial petition empowers the Clerk to refuse to file the petition and to forgo giving the “particulars in which [the petition] is defective.” See As we have seen in this case, the source of an error may even be a government agency. In this case, the Hudson County Clerk gave plaintiffs the wrong election year from which to make the voter-count calculation. The City Clerk provided plaintiffs, in two separate letters, with conflicting figures on the number of votes cast in Hoboken, and the discrepancy amounted to a difference of more than fourteen hundred votes. The Clerk‘s second letter indicated that his office had reviewed “Hudson County docu- The supplemental petition allows the referendum proponents to file a petition conforming with the statutory scheme, regardless of the reasons that made the initial petition deficient. When the referendum statutes are read as an integrated whole and liberally construed for the purpose of promoting voter participation, it is clear that the municipal clerk does not have the discretion to prevent the filing of a petition based on facial insufficiency. We are in agreement with the trial court and Appellate Division: the Hoboken City Clerk violated the terms of the Faulkner Act by rejecting plaintiffs’ petition as filed. We next must determine whether the City Clerk‘s refusal to file or certify the referendum petition constitutes a deprivation of “any substantive rights secured by the Constitution or laws of this State,” entitling plaintiffs to relief under the New Jersey Civil Rights Act. We start, as we must, with the plain language of the relevant provisions of the Civil Rights Act. Any person who has been deprived of any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. In addition to the relief enumerated above, a “court may award the prevailing party reasonable attorney‘s fees and costs.” To establish a violation of the Civil Rights Act in this case, plaintiffs must prove that (1) “the Constitution or laws of this State” conferred on them a substantive right; (2) the City Clerk deprived them of that right; and (3) the Clerk was “acting under color of law” when he did so. The Civil Rights Act does not define substantive right, nor is the term self-explanatory. By its very nature, the term is broad in its conception. Although the Act‘s sparse legislative history sheds little light on the precise meaning of the term, it does give a sense of the intended scope of the Act. The Senate Judiciary Committee Statement appended to the proposed legislation explains that the Civil Rights Act is intended to “provide the citizens of New Jersey with a State remedy for deprivation of or interference with the civil rights of an individual.” S. Judiciary Comm. Statement to S. No. 1558, 211th Leg. 1 (May 6, 2004). The Act was expected to fill “potential gaps which may exist under remedies currently provided by New Jersey‘s ‘Law Against Discrimination,’ Defendants maintain that, based on that brief legislative statement, the Act should be limited to civil rights cases involving discrimination. That interpretation, however, is at complete odds with the broadly worded language of the Act. If the Legislature intended to limit the substantive rights protected by the Act to only those involving discrimination, it undoubtedly would have said so. See DiProspero, supra, 183 N.J. at 493, 874 A.2d 1039. Moreover, the “gap-filling” could not have been for the purpose of plugging holes in the Law Against Discrimination (LAD), Importantly, the meager legislative history tells us that our State Civil Rights Act is modeled off of the analogous Federal Civil Rights Act, The interpretation given to parallel provisions of Section 1983 may provide guidance in construing our Civil Rights Act. See Garrison v. Twp. of Middletown, 154 N.J. 282, 289, 712 A.2d 1101 (1998) (noting that interpretation of California Tort Claims Act may be used as guide in construing similar New Jersey Tort Claims Act provisions). Section 1983, in relevant part, provides that any person who, under color of law, deprives another person “of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or Section 1983 is not itself a source of substantive rights, but rather a vehicle by which rights conferred by the Federal Constitution and federal laws may be vindicated. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508, 522-23 (1979); Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433, 442 n. 3 (1979). Section 1983 protects against the violation of federal rights, not federal laws. Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569, 582 (1997). A statute does not give rise to a right under Section 1983 unless a plaintiff can satisfy three factors. A plaintiff must show that (1) Congress intended the statute to “benefit the plaintiff“; (2) “the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence“; and (3) “the statute must unambiguously impose a binding obligation on the States.” Id. at 340-41, 117 S.Ct. at 1359, 137 L.Ed.2d at 582 (citations omitted). “Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983.” Id. at 341, 117 S.Ct. at 1360, 137 L.Ed.2d at 582. That is because Congress may “‘specifically foreclose[] a remedy under § 1983” either expressly “or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Ibid. (citations omitted). Congress‘s intent is the crucial consideration in determining whether a statute precludes an action under Section 1983. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 252, 129 S.Ct. 788, 793-94, 172 L.Ed.2d 582, 590 (2009). Significantly, in the three cases in which the United States Supreme Court found that federal statutory schemes precluded claims under Section 1983, “the statutes at issue required plaintiffs In contrast, in Fitzgerald, supra, the Supreme Court permitted plaintiffs to proceed with a Section 1983 lawsuit alleging gender discrimination in violation of the Fourteenth Amendment‘s Equal Protection Clause and Title IX, Our state Civil Rights Act is of recent origin. Although the issues that arise over its interpretation are new to us, we have the benefit of an established line of jurisprudence construing its sister provision, Section 1983. To determine whether our State Constitution or state law confers a substantive right on a class of individuals in any particular case, we will apply the test developed by the United States Supreme Court in Blessing, supra. We find that approach sensible and adaptable to our Civil Rights Act. In accord with the Blessing test, even if we find that a statute confers a right, we still must determine whether the Legislature did not intend remedies of our Civil Rights Act to supplant those of other statutes. We note two distinct differences between Section 1983 and our Civil Rights Act. First, our Act protects against the deprivation of and interference with “substantive rights, privileges or immunities secured by the Constitution or laws of this State,” Second, Section 1983 was the product of the Federal Civil Rights Act of 1871, c. 22, § 1, 17 Stat. 13, 13. In applying the Blessing test, the United States Supreme Court has analyzed whether Congress intended a statute enacted after 1871 to foreclose the available remedies of Section 1983. See Fitzgerald, supra, 555 U.S. at 253, 129 S.Ct. at 794, 172 L.Ed.2d at 591. Here, because the New Jersey Civil Rights Act is of recent vintage, we must determine whether the Legislature did not intend In determining whether the referendum provisions of the Faulkner Act confer a substantive right on plaintiffs, and their third-party beneficiaries (the voters of Hoboken), we will apply the following test: plaintiffs must establish that (1) the referendum statutes were intended to confer a “benefit” on plaintiffs as a representative class of voters of Hoboken; (2) the statutory right to challenge an ordinance and place it before the voting public is not “so ‘vague [or] amorphous’ that its enforcement would strain judicial competence“; and (3) the Faulkner Act “unambiguously impose[s] a binding obligation” on Hoboken. Cf. Blessing, supra, 520 U.S. at 340-41, 117 S.Ct. at 1359, 137 L.Ed.2d at 582. In addition, plaintiffs must show that the right is substantive, not procedural. “Substantive” addresses those rights and duties that may give rise to a cause of action, see Brown & Root Indus. Serv. v. Indus. Comm‘n, 947 P.2d 671, 675 (Utah 1997), whereas “procedural” addresses “the manner and the means” by which those rights and duties are enforced, Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 407, 130 S.Ct. 1431, 1442, 176 L.Ed.2d 311, 323 (2010). The City Clerk‘s failure to file the referendum petition to allow a vote on the ordinance gave rise to a cause of action. Thus, by definition, the right of referendum is substantive in nature. The only remaining question is whether the Legislature in passing the New Jersey Civil Rights Act either expressly or impliedly did not intend the Act‘s remedies to apply to long-established actions in lieu of prerogative writ—mandamus actions—to compel an official to enforce the Faulkner Act‘s right of referendum. Because plaintiffs have satisfied the three-factor Blessing test and shown that the right of referendum is substantive, defendants must now show that the enforcement of rights under the New Jersey Civil Rights Act is incompatible with the Faulkner Act. Defendants have not carried that burden. Nothing in the broad-based language of the Civil Rights Act remotely suggests that the drafters did not intend its remedies to One of the most powerful remedies of the New Jersey Civil Rights Act is the award of attorney‘s fees to a prevailing party. See We have spoken of the Legislature‘s purpose in awarding attorney‘s fees to successful litigants in cases arising under the Consumer Fraud Act, In the present case, before passage of the Civil Rights Act, plaintiffs could seek to compel the City Clerk by judicial action to process a referendum through an action in lieu of prerogative writ. But it might seem unlikely that average citizens looking to participate in the democratic process could afford to litigate to enforce their substantive right of referendum. Success in such an action usually does not afford money damages. With the attorney‘s fees provision of It is true that a municipality‘s violation of citizens’ substantive civil rights will impose some financial burden on it, as suggested by amici curiae League of Municipalities and Institution of Local Government Attorneys. But that is a policy decision resolved by the Legislature when it passed the Civil Rights Act. The New Jersey Civil Rights Act was intended to apply to cases, such as this one, where a citizen deprived of a substantive right, could not otherwise afford to retain counsel. In essence, the right of referendum is about enfranchisement, about self-government, and about giving citizens the right to vote on matters of importance to their community. As earlier described, the referendum took root in an era when citizens protested about the outsized influence of special interests in the legislative process. As Governor Wilson said around the time of the enactment of New Jersey‘s first referendum statute: the referendum is one of “the safeguard[s] of politics,” Hendrick, supra, at 235; it “enable[s] the people to correct the mistake of their Governors,” Makes Appeal to Lawmakers, supra. The referendum is direct democracy in its purest sense, allowing citizens to take an appeal above the heads of their elected officials and directly to the voters who can then approve or reject an ordinance at the polls. See In re Trenton Ordinance 09-02, supra, 201 N.J. at 353, 990 A.2d 1109 (stating that referendum power “is an exercise in democracy that profoundly affects the relationship between the citizens and their government by afford- In short, we conclude that the Faulkner Act confers a substantive right of referendum protected by the New Jersey Civil Rights Act. The final question we must resolve is whether the Hoboken City Clerk deprived plaintiffs of their substantive right of referendum under the Faulkner Act. Defendants contend that because plaintiffs succeeded in compelling the Clerk to process the referendum petition and place the ordinance on the ballot, they were not deprived of their substantive right of referendum. On the other hand, plaintiffs submit that when the Clerk refused to file the petition, the deprivation was complete. We reject defendants’ position for a number of reasons. First, although neither the Civil Rights Act nor its legislative history defines the word “deprivation,” it does have a common understanding. Deprive or deprivation has been defined as “[a]n act of taking away,” and “[a] withholding of something,” Black‘s Law Dictionary 507 (9th ed.2009), and “[t]o keep from having or enjoying,” Webster‘s II New College Dictionary 305 (2001). Certainly, before plaintiffs secured judicial relief, the Clerk‘s refusal to file their referendum petition took away, withheld, and kept plaintiffs from enjoying their right of referendum. That the Law Division later provided a judicial remedy by compelling the Clerk to abide by the Faulkner Act and process the referendum petition does not alter the nature of the Clerk‘s earlier act, which deprived plaintiffs of a statutory right. This result is supported by a long line of federal cases in Section 1983 actions. By its very words, Section 1983 implicates only cases involving the deprivation of a plaintiff‘s statutory or constitutional right. Under Section 1983, federal courts have found that For example, when municipal officials in Wichita, Kansas, denied an anti-abortion group a permit to conduct a protest parade, the United States Court of Appeals for the Tenth Circuit found that the plaintiffs were deprived of their First Amendment rights under Section 1983, despite the District Court‘s entry of an order that allowed the parade to go forward without interruption. Lippoldt v. Cole, 468 F.3d 1204, 1210-11, 1220 (10th Cir. 2006). The Tenth Circuit concluded that the plaintiffs “suffered injury by the alleged abridgement of their First Amendment rights when the City denied the parade permits.” Id. at 1217. Under those circumstances, the plaintiffs were the prevailing party, entitling them to attorney‘s fees. Id. at 1222-24. In short, protesters who receive “an injunction to exercise their First Amendment rights at a specific time and place—say to demonstrate at a Saturday parade” are prevailing parties because they have secured “all the court-ordered relief they need.” McQueary v. Conway, 614 F.3d 591, 599 (6th Cir. 2010), cert. denied, 562 U.S. 1137, 131 S.Ct. 927, 178 L.Ed.2d 752 (2011). Federal courts in Section 1983 actions apparently do not trouble themselves over whether injunctive relief overturning government action is premised on remedying the deprivation of a right that already occurred or on remedying the anticipated deprivation of a right. See, e.g., People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 229 (3d Cir. 2008) (holding plaintiffs entitled to attorney‘s fees in Section 1983 action where district court directed city to provide parade permit and parade occurred as originally planned); Young v. City of Chicago, 202 F.3d 1000, 1000-01 (7th Cir. 2000) (holding plaintiff protestors entitled to attorney‘s fees in Section 1983 action where district court directed city to allow protest to proceed as planned outside of Democratic The principle established in these federal cases is that a plaintiff is entitled to relief for Section 1983 purposes when a government official blocks access to a right—e.g., the right to assemble or protest or vote—before judicial intervention. That a court comes to a plaintiff‘s rescue does not alter the nature of the earlier governmental deprivation or anticipated deprivation. The dissent basically asserts that because plaintiffs sought and received immediate judicial relief, plaintiffs lost their right to file a civil-rights action. If we accepted that view, the statute would reward inaction and penalize success. This perverse disincentive is precisely what the Legislature could not have had in mind in encouraging the vindication of a right deprived by a public official. Moreover, the dissent‘s examples in which a deprivation of a right occurred do not exhaust the myriad scenarios in which a deprivation can occur. Post at 490-94, 95 A.3d at 233-35. A plaintiff deprived of a civil right is a prevailing party in a Section 1983 action “when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant‘s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 573, 121 L.Ed.2d 494, 503 (1992). An injunction “will usually satisfy that test.” Lefemine v. Wideman, 568 U.S. 1, 11, 133 S.Ct. 9, 11, 184 L.Ed.2d 313, 316 (2012). A case that makes this point in a voting-rights setting is Diffenderfer v. Gomez-Colon, 587 F.3d 445 (1st Cir. 2009). In that case, the plaintiffs, a class of English-speaking residents of Puerto Rico, filed a Section 1983 action challenging a decision of the Electoral Commission of Puerto Rico to print ballots only in Spanish for the November 2008 election. Id. at 449. The federal In the present case, the trial court‘s grant of relief—ordering the City Clerk to process the referendum petition—constituted a relief on the merits “modifying [defendants‘] behavior in a way that directly benefits the plaintiff.” Cf. Farrar, supra, 506 U.S. at 111-12, 113 S.Ct. at 573, 121 L.Ed.2d at 503. Before the court‘s ruling, plaintiffs were unable to place the ordinance on the ballot; after the ruling, Hoboken was required to proceed with the referendum in the next election. Moreover, we are not reading out of We also reject the dissent‘s claim that because “there was no precedential authority” that spoke precisely to the facts in this case and because the City Clerk presumably acted in “good faith,” plaintiffs are not entitled to relief under the New Jersey Civil Rights Act. Post at 488, 95 A.3d at 231-32. Stripped to its essence, the dissent is suggesting that injunctive relief is barred by qualified immunity. Under Section 1983, when a statutory or constitutional right is violated, a plaintiff is entitled to injunctive relief even if the right was not “sufficiently clear that a reasonable official would understand that what he [was] doing violate[d] that right,” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531 (1987). See, e.g., Wood v. Strickland, 420 U.S. 308, 314 n. 6, 95 S.Ct. 992, 997 n. 6, 43 L.Ed.2d 214, 221 n. 6 (1975) (“[I]mmunity from damages does not ordinarily bar equitable relief as well.“), abrogated in part on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982); Hill v. Borough of Kutztown, 455 F.3d 225, 244 (3d Cir. 2006) (“[T]he defense of qualified immunity is available only for damages claims—not for claims requesting prospective injunctive relief.“); Gormley v. Wood-El, 218 N.J. 72, 115, 93 A.3d 344 (2014) (“[Q]ualified immunity does not bar actions for injunctive relief.“). In cases in which the right is not sufficiently clear, however, the plaintiff may not secure money damages from a government official. See Harlow, supra, 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410 (“[G]overnment officials ... are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights....” (citations omitted)). That the Clerk acted in good faith or that a court had not previously addressed the specific facts in this case does not bar equitable relief under the New Jersey Civil Rights Act—no more than it bars relief under Section 1983. Had plaintiffs instituted a lawsuit for money damages against the City Clerk, as opposed to seeking an action for injunctive relief, we would be dealing with a In summary, plaintiffs are deprived of a substantive right protected by the New Jersey Civil Rights Act when a defendant acting under color of law completely prevents them from exercising that right. Before plaintiffs secured judicial relief, the City Clerk prevented plaintiffs from enjoying their right of referendum. Securing judicial relief does not erase the earlier act of deprivation. We hold that the City Clerk deprived plaintiffs of their substantive right of referendum when he refused to file their referendum petition. For the reasons explained, we affirm the judgment of the Appellate Division upholding the trial court‘s finding that defendants violated the Faulkner Act. We reverse that part of the Appellate Division‘s judgment overruling the trial court‘s finding that plaintiffs were deprived of a substantive right guaranteed by the New Jersey Civil Rights Act and vacating the trial court‘s award of attorney‘s fees to plaintiffs. We remand to the trial court for proceedings consistent with this opinion. Justice PATTERSON, concurring in part and dissenting in part. The majority holds today that the City Clerk of the City of Hoboken did not properly apply the Faulkner Act, My conclusion is rooted in the nature of the parties’ underlying dispute. In its opinion today, the majority provides significant guidance to municipal clerks in Faulkner Act municipalities when confronted with facially deficient petitions that do not include the required number of signatures. Ante at 469-71, 95 A.3d at 220-21. In the future, municipal clerks will be on notice of the procedure to be followed when such petitions are presented for filing. Until the ruling of the Appellate Division panel in this case, however, there was no such guidance. When the Hoboken Municipal Clerk reviewed plaintiffs’ petition, there was no authority in our case law defining the procedure to be followed when a petition lacking the number of signatures required by the Faulkner Act was presented. See Prior case law regarding the adequacy of petitions under the Faulkner Act addressed issues different from that presented by plaintiffs’ petition: the petitioners’ compliance with the requirement that “the names and addresses of five voters, designated as the Committee of the Petitioners” “appear on each petition paper,” pursuant to Accordingly, when the City of Hoboken invoked the technical requirements of the Act to reject plaintiffs’ patently deficient petitions, it asserted a good faith legal argument in an area of law in which case law provided little guidance. As the majority recounts, plaintiffs’ construction of the Faulkner Act prevailed. In a ruling that would withstand appellate review, the trial court held that the Clerk‘s actions had been arbitrary and capricious, and ordered him to process and review the original and supplemental petitions filed by plaintiffs. In the wake of these developments, plaintiffs achieved their objective. On the City of Hoboken ballot for the November 8, 2011 general election, the referendum to repeal the disputed ordinance appeared as Public Question No. 2. Although the voters rejected plaintiffs’ challenge to the ordinance, the right of referendum created by the Faulkner Act was afforded to plaintiffs and all Hoboken citizens in the very election that plaintiffs had identified in their petition. I respectfully submit that, at most, the position taken by the Municipal Clerk triggered an interference, or attempted interference, with the Faulkner Act right of referendum. I cannot join the majority‘s holding that plaintiffs suffered a deprivation of that right under The meaning of a deprivation of a right is illustrated by decisions applying Similarly, in Burch v. Apalachee Cmty. Mental Health Servs., Inc., 840 F.2d 797, 799, 803 (11th Cir. 1988), aff‘d, Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), the plaintiff‘s five-month involuntary commitment during which he was “never ... accorded a hearing at which to challenge his commitment and treatment” was sufficient to “state a procedural due process claim upon which relief could be granted” under In each of these cases, the plaintiff identified a procedural due process right to a hearing before action could be taken against him or her, and the defendant, clearly contravening the required procedure, did not hold the requisite hearing. These litigants were not simply subjected to delay, inconvenience, or the expense of bringing suit to resolve a close question of law. Each plaintiff was unjustifiably denied the right to defend him or herself at an adjudicatory hearing, thus supporting a claim under New Jersey and federal courts applying Police use of excessive force has been held in several cases to constitute a deprivation of the plaintiffs’ Fourth Amendment rights under To the majority, the fact that plaintiffs were compelled to resort to litigation in order to ensure a vote on the repeal of the challenged ordinance means that they suffered a deprivation of their rights under the Faulkner Act. Ante at 481-83, 95 A.3d at 227-29. The majority relies on cases in which a governmental entity indisputably—in some cases admittedly—violated a statute, ordinance or constitutional provision in seeking to bar the plaintiffs’ activity. In Lippoldt v. Cole, the defendant City of Wichita conceded that it had denied the plaintiffs’ application for a parade permit notwithstanding the fact that its parade ordinance mandated the grant of that permit. 468 F.3d 1204, 1210 (10th Cir. 2006). Similarly, in People Against Police Violence v. City of Pittsburgh, although the City of Pittsburgh immediately abandoned its defense of an ordinance that, among other requirements, compelled individuals seeking to engage in expressive activity in public forums to prepay the City‘s police costs associated with that activity, the City did not repeal that ordinance or substitute a constitutional alternative in its stead. 520 F.3d 226, 229 (3d Cir. 2008). Accordingly, the District Court issued an injunction in plaintiffs’ favor, which the City did not challenge on appeal. Id. at 230. The Third Circuit affirmed the District Court‘s holding that plaintiffs were “prevailing parties” under In Young v. City of Chicago, the Seventh Circuit addressed issues stemming from a District Court‘s decision to enjoin the City of Chicago‘s ban on all protests within a perimeter around the site of the 1996 Democratic National Convention. 202 F.3d 1000, Rogers Grp., Inc. v. City of Fayetteville involved a due process and unconstitutional taking without just compensation challenge to an ordinance that placed limitations on the operations of rock quarries “near” the city limits, as well as within those limits, thus constituting an effort by the city to regulate activities outside of its boundaries. 683 F.3d 903, 904-05 (8th Cir. 2012). The constitutional challenge prompted the City of Fayetteville to repeal the portion of its ordinance that attempted to regulate rock quarries located beyond its borders. Id. at 906. The Eighth Circuit held that the plaintiff was a “prevailing party” for purposes of The single case cited by the majority that addresses an election, Diffenderfer v. Gomez-Colon, 587 F.3d 445 (1st Cir. 2009), arose from circumstances very different from the setting of this case. There, the plaintiffs challenged the decision made by the State Election Commission of the Commonwealth of Puerto Rico that the ballots for the 2008 election in the Commonwealth—including While that award was on appeal, the Commonwealth‘s legislature enacted a statute mandating bilingual ballots. Diffenderfer, supra, 587 F.3d at 450. The First Circuit vacated the underlying judgment as moot, but affirmed the award of counsel fees. Id. at 451, 455. It held that the action by the legislature was “a circumstance not attributable to the Commission as an individual administrative entity.” Id. at 452. It also noted that corrective legislation “is generally considered an intervening, independent event and not voluntary action, particularly when the governmental entity taking the appeal, as here, is not part of the legislative branch.” In short, the majority cites no federal or New Jersey case law that suggests, let alone holds, that when a governmental authority asserts a viable legal position on an unsettled question of law, and that question is resolved in the plaintiff‘s favor in time for the plaintiff to exercise the disputed right, the defendant‘s action amounts to a deprivation. By the plain meaning of the term as it appears in In contrast to Instead, the Legislature carefully distinguished between an interference or attempted interference with a substantive right—which warrants no NJCRA remedy unless achieved “by threats, intimidation or coercion“—and a deprivation of such a right. I respectfully submit that the majority applies the NJCRA beyond its intended parameters when it construes a municipality‘s assertion of a good faith legal position in an area of unsettled law to be a deprivation of plaintiffs’ civil rights within the meaning of For affirmance in part/reversal in part/remandment—Chief Justice RABNER and Justices ALBIN, FERNANDEZ-VINA and RODRÍGUEZ (temporarily assigned)—4. For concurrence in part/dissent in part—Justices LaVECCHIA and PATTERSON—2. Not Participating—Justice CUFF (temporarily assigned).III.
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IV.
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VI.
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C.
VII.
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C.
D.
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VIII.
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IX.