KATHERINE G. WATT, pro se96 MERCER AVE. APT. 2North Plainfield NJ 07060(908) 754-9111____________________________________________________

: SUPERIOR COURT OF NEW JERSEY: LAW DIVISION – CIVL PART: SOMERSET COUNTY: DOCKET NUMBER – SOM-L-1853-07

KATHERINE G. WATT, ::

Plaintiff, :: CIVIL ACTION

vs. ::

NORTH PLAINFIELD BOROUGH CLERK :GLORIA PFLEUGER, NORTH PLAINFIELD :BOROUGH ATTORNEY ERIC BERNSTEIN :

Defendants ::

____________________________________________________ :

PLAINTIFF’S BRIEF IN OPPOSITION TO MOTION TO DISMISS

PRELIMINARY STATEMENT

At issue in the present controversy, in which both parties seek a judicial opinion as to the

legal sufficiency of the Corporate Land Development and Local Self-Governance Ordinance,

(hereafter, “the Ordinance”), proposed under the provisions of the Faulkner Act (N.J.S.A. 40:69A-

184, are two legal theories predominate on the American judicial, political and social landscape and

in direct conflict with one another: the inherent, inalienable and indefeasible power of the People to

govern themselves, and the bestowal of special rights, immunities and privileges by the state upon

a privileged minority who use for-profit corporations to nullify the self-governing rights of the

People.

Plaintiff opposes Defendants’ Motion to Dismiss for three reasons.

1) The Proposed Ordinance is not, as claimed by Defendants, a zoning ordinance, but a

rights-based ordinance intended to rectify an illegitimate imbalance between the right

of the People to govern in the community where they live, and the claimed right of those

using for-profit corporations to nullify that right. The proposed Ordinance establishes,

not land use law, but local control by self-governing individuals in a democratic

community. As such, it violates neither the Faulkner Act nor the Constitution, because:

a) the People’s right of self-governance is inherent, inalienable, irrevocable, and

indefeasible, and

b) prior judicial bestowal of privileges on a class of men, through the invention of

“corporate personhood,” is founded upon material misstatements of fact: people are

people, corporations are contractually-created associations of people, and human

rights can only be held and exercised by real human people, not contractual

associations. Additionally, the invention of a privilege-bearing title by way of

corporate chartering has the effect in law of granting a class of men special rights

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and privileges not shared and enjoyed by all in common. The proposed Ordinance

seeks to set right that injustice.

2) To the extent the proposed Ordinance addresses land use within the Borough of North

Plainfield , it marks a local reclamation of land use planning authority unconstitutionally

arrogated to the Legislature via the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq,

hereafter “MLUL”) and prior legislation, and as such, it falls squarely within the self-

governance rights held by the People of North Plainfield as asserted under 1a and 1b,

above.

3) To the extent that the Municipal Clerk and Municipal Attorney lack the authority to

independently determine the legal sufficiency of initiated ordinances under the

Faulkner Act, (Atlantic Housing Action Coalition v. Deane, 181 N.J. Super. 412 (Law Div.

1981); S-1177 and A-3436 in the 2006-2007 Session of the New Jersey Legislature1),

1 LEGISLATIVE STATEMENT on S-1177- This bill would establish an expedited mechanism for a Faulkner Act municipal governing body to keep an ordinance initiated by the voters off the ballot if it is determined that the ordinance would exceed the authority of the municipality or is otherwise inappropriate.  Similarly, the bill would establish a mechanism to prohibit a referendum petition from forcing the submission of an ordinance to the voters if it would be inappropriate to submit the ordinance to the voters.  This bill would codify a body of case law, following the line of Cuprowski v. City of Jersey City , 101 N.J.Super. 15 (Law Div., 1968), aff'd. 103 N.J.Super. 217 (App. Div. 1968), certif. den. 53 N.J. 80 (1968), that constrains the use of initiative and referendum procedures.     Recently, a proposed ordinance that contained provisions contrary to State and federal law was placed upon a local ballot.  Fortunately for that municipality the initiative failed before the voters.   Had it garnered the requisite votes, the municipality would have had to incur expenses in order to take the matter to court.       While the voters in Faulkner Act municipalities possess the power to propose new ordinances by initiative, it has long been understood that "the Faulkner Act does not imbue initiative-proposed ordinances with any qualities different from other ordinances.   Only municipal legislation that may be enacted by the governing body itself may be the subject of an initiative proceeding."   Maese v. Snowden , 148 N.J.Super. 7 (App. Div. 1977).  In Maese , when the municipal clerk took steps to prevent submission of an initiated ordinance to the voters, upon advice from the municipal attorney that the proposed ordinance was illegal, the petitioners sued to compel placement of the ordinance on the ballot.        This bill would save a municipality the time and cost of responding to a lengthy legal proceeding when confronted with an inappropriately initiated ordinance or inappropriate referendum petition.   The municipal attorney would be required to undertake a legal sufficiency review upon the clerk's receipt of an ordinance proposed by initiative or a referendum petition.   If the municipal attorney determines that the proposed ordinance or referendum petition is legally defective, the municipal governing body could seek and obtain in a summary proceeding in the Superior Court an injunction prohibiting the submission of the proposed ordinance to the voters. http://www.njleg.state.nj.us/2006/Bills/S1500/1177_I1.HTM (Accessed December 17, 2007).

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but believe the Ordinance to be insufficient, the Faulkner Act requires them to

refer their question for adjudication by the Courts. This they failed to do.

However, their unauthorized independent rejection letter, followed by Plaintiff’s

Complaint, have achieved the same result. Plaintiff also finds Defendants’

reference to absolute immunity for liability under N.J.S.A. 59:2-3(a) et seq moot;

Plaintiff’s cause of action is not a tort claim seeking damages, but a deprivation

of rights claim, seeking solely injunctive relief under U.S.C. 42, Section 1983, Civil

action for deprivation of rights by Defendants acting under color of state law.2

In opposition to Defendants’ Motion to Dismiss, Plaintiff asserts that, despite legislatively-

imposed limitations on the right of initiative and judicial precedent recognizing the bestowal of

special rights and privileges on a class of men via the invention of “personhood” for corporations,

the New Jersey Legislature has never been authorized, cannot have intended, and the Courts can no

longer enforce (by arguing an obligation of deference to unjust law or adjudication) any illegitimate

limits on the People’s right to democratically govern themselves by means including but not limited

to the initiative procedures outlined by the Faulkner Act. Further, corporations are not persons

entitled to equal protection from discriminatory treatment under local, New Jersey and federal law.

Plaintiff seeks Summary Relief, pursuant to R. 4:67-1(a).

2 If Defendants believe their participation in the instant Faulkner initiative process opens them up to professional, rather than legal, liability, Plaintiff would support their memorializing their professional opinions via written waivers, noting that they do not endorse the Ordinance, and indicating that, should the People of North Plainfield adopt the Ordinance via plebiscite, they do so against the advice of the Municipal Clerk and Municipal Attorney. (This procedure has been used to protect municipal solicitors in various Pennsylvania municipalities where local citizens are also advancing the cause of local control.)

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FACTUAL AND PROCEDURAL HISTORY

1. In 1974, the Borough Council of the Borough of North Plainfield adopted a Master

Plan, which was reexamined in 1982 and again in 1996. In October 2002, the

Borough Council quietly replaced the original Master Plan, establishing the

Borough’s new intention of encouraging the development of a 17-acre parcel of land

containing historic structures and a forest of some 500 trees, into age-restricted

condominiums. This last parcel of open space within the Borough is known as the

“Villa Maria.”

2. Between 2003 and 2005, the Council made repeated unsuccessful attempts to

provide proper public notice and adopt a new Age Restricted Condominium Zoning

Ordinance (hereinafter, “ARC”) that had been drafted by corporate real estate

developers with Town and Country Developers, who, at that time, intended to

develop the Villa Maria parcel. The ARC would solely affect the Villa Maria parcel,

and would permit historic and ecological destruction of the buildings and grounds,

thereby promoting flooding, school overcrowding (should the age restriction be

lifted via future hardship variance) and traffic congestion throughout the densely

populated, low-lying, flood-prone Borough. The ARC was vigorously opposed by

North Plainfield citizens, on these grounds of danger posed to the public health,

safety and welfare, at every public hearing on the issue.

3. In Fall 2005, the Council finally gave proper notice of a public hearing for adoption

of the ARC ordinance.

4. A neighboring Green Brook resident within the 200-foot notice zone, William

Campbell, obtained proper signatures on a protest petition under the protest

provisions of the MLUL (N.J.S.A. 40:55D-63) thus triggering the statute’s

requirement for a two-thirds majority of the Council to adopt the ARC ordinance.

5. At the October 2005 meeting, the final Council vote was 4-2, due to a vacancy on the

7-member Council, and on the night of the vote, the Council President announced

that the ARC had failed, being one vote short of the two-thirds needed for passage.

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6. Nonetheless, the Mayor quietly signed the ARC into law a few weeks later,

prompting Mr. Campbell to file a lawsuit to overturn the ordinance as invalidly

adopted. (Campbell v. Borough of North Plainfield, SOM-L-1784-5, SOM-L-0567-06).

7. In September 2007, Mr. Campbell prevailed and the ARC ordinance was invalidated.

(Unpublished Opinion of Judge Victor Ashrafi, September 10, 2007)

8. Two weeks later, on September 24, 2007 the Council placed the identical ARC

ordinance back on the agenda for readoption, but removed it from the agenda when

confronted with organized citizen opposition.

9. One week later, on October 1, 2007, at the Mayor’s direction, Defendant, Borough

Attorney Eric Bernstein, appealed Judge Ashrafi’s decision instead, in a bid to have

the decision overturned. To Plaintiff’s knowledge, this case is still pending in the

Appellate Division.

10. Meantime, alarmed at the Mayor and Council’s proven capacity and obvious

intention to disobey the will of the people, and newly aware of the extreme limits to

local police power to protect local health, safety and welfare imposed by the state

Legislature in arrogating such police powers via the MLUL and other similar

preemptive codes, a group of North Plainfield citizens organized an initiative

petition drive during the Summer and Fall of 2007, seeking signatures to place upon

the ballot, for a town-wide vote, the Corporate Land Development and Local Self-

Governance Ordinance.

11. The intention of the Ordinance, attached to Plaintiff’s Complaint and to Defendants’

Certification, was and is to reassume and reassert the People’s inherent, inalienable

and indefeasible power and right to protect our health, safety and welfare using

tools of local self-governance, by stripping corporations of the fictional legal

personhood within the Borough that currently enables a class of men privileged by

the bestowal of rights upon corporations to wield the Constitution and laws of the

United States against the will and to the detriment of the health, safety and welfare

of the People.

12. Subsequent factual and procedural history – undisputed by Plaintiff - is laid out in

Defendants’ Certification, Points 2 through 7.

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POINT ONE – Defendants’ Motion to Dismiss Should Be Denied Because the Proposed Ordinance is Constitutional and Lawful.

13. The American Revolution, the Declaration of Independence, the United States

Constitution and the New Jersey Constitutions are founded on the People’s authority

as the sole legitimate source of all political power, and their inherent, inalienable

and indefeasible right to democratic self-governance. Thus, Defendants’ actions

illegitimately and unconstitutionally deprive Plaintiff of her inherent, inalienable

and indefeasible right to engage her community in acts of self-governance, and must

be judicially invalidated, and so comprise a cause of action under U.S.C. 42, Section

1983, Civil action for deprivation of rights.3

14. Beginning in the early 1760s, provoked by actions taken by the British monarch,

King George III, and the British Parliament, the people of the 13 American colonies

engaged in civil resistance that culminated in a successful armed rebellion against

British rule now known worldwide as the American Revolution.

15. The founding document drafted to legitimize these acts of rebellion was the

Declaration of Independence of 1776, which stated:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. DECLARATION OF INDEPENDENCE, Para. 2 (U.S. 1776)

This section of the Declaration of Independence was followed by a lengthy list of

grievances against the British King and Parliament, the first two being the King’s

refusal to: “Assent to Laws, the most wholesome and necessary for the public good;”

and the King’s forbidding “his Governors to pass Laws of immediate and pressing

3 “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation 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 other proper proceeding for redress…” U.S.C. 42 §1983

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importance, unless suspended in their operation till his Assent should be obtained;

and when so suspended, he has utterly neglected to attend to them.” (Id, at Para. 3)

16. In November 1777, after a year of debate and drafting, the Second Continental

Congress adopted the Articles of Confederation, laying out the relationships among

the states for their mutual protection and defense during the war.

17. Ten years later in 1787, the U.S. Constitution was adopted, replacing the Articles of

Confederation:

…the United States replaced the Articles of Confederation with a national Constitution. The inalienable right of local self-government is reflected, albeit weakly, in the U.S. Constitution in four places.

First, the Preamble acknowledges that the people are the source of all power in government, which ought to operate for the general welfare of the people.

Second, section 4 of Article IV says, “The United States shall guarantee to every State in this Union a Republican Form of Government.”

Third, in the Bill of Rights, which the Federalists promised to ratify to encourage ratification of the body of the Constitution by the Anti-federalists, the Ninth Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Fourth, the Tenth Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.”

Speaking at the Pennsylvania convention that ratified the federal Constitution, James Wilson said:

“His [Mr. Findley’s] position is, that the supreme power resides in the States, as governments; and mine is, that it resides in the people, as the fountain of government; that the people have not—that the people mean not—and that the people ought not, to part with it to any government whatsoever. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper.” James Wilson, Pennsylvania Ratifying Convention, 4 Dec. 1787 (reprinted in Philip B. Kurland, THE FOUNDERS’ CONSTITUTION VOLUME ONE at 62). Office Of Attorney General v. East Brunswick Township and East Brunswick Township Board of Supervisors, Commonwealth Court of Pennsylvania, No. 476 M.D. 2007, Brief of Respondents in Opposition to Application for Summary Relief, by Thomas Linzey, Esq., p. 45, fn 48.

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18. At about the same time that Thomas Jefferson was drafting, and the Continental

Congress was adopting the Declaration of Independence, the People of each state

adopted their own Constitutions. The New Jersey Constitution of July 2, 1776, reads,

in pertinent part:

Preamble: WHEREAS all the constitutional authority ever possessed by the kings of Great Britain over these colonies, or their other dominions, was, by compact, derived from the people, and held of them, for the common interest of the whole society; allegiance and protection are, in the nature of things, reciprocal ties, each equally depending upon the other, and liable to be dissolved by the others being refused or withdrawn. And whereas George the Third, king of Great Britain, has refused protection to the good people of these colonies; and, by assenting to sundry acts of the British parliament, attempted to subject them to the absolute dominion of that body; and has also made war upon them, in the most cruel and unnatural manner, for no other cause, than asserting their just rights -- all civil authority under him is necessarily at an end, and a dissolution of government in each colony has consequently taken place.

And whereas, in the present deplorable situation of these colonies, exposed to the fury of a cruel and relentless enemy, some form of government is absolutely necessary, not only for the preservation of good order, but also the more effectually to unite the people, and enable them to exert their whole force in their own necessary defense: and as the honorable the continental congress, the supreme council of the American colonies, has advised such of the colonies as have not yet gone into measures, to adopt for themselves, respectively, such government as shall best conduce to their own happiness and safety, and the well-being of America in general:

-- We, the representatives of the colony of New Jersey, having been elected by all the counties, in the freest manner, and in congress assembled, have, after mature deliberations, agreed upon a set of charter rights and the form of a Constitution, in manner following…[Emphasis added]. THE NEW JERSEY CONSTITUTION OF 1776, http://www.nj.gov/njfacts/njdoc10a.htm, (Accessed December 16, 2007)

19. In 1844, New Jersey convened a Constitutional Convention and drafted a new

Constitution, which read, in pertinent part:

ARTICLE I.

1. All men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and

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liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

2. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it.

18. The people have the right freely to assemble together to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.

19. This enumeration of rights and privileges shall not be construed to impair or deny others retained by the people. (Emphasis added.) THE NEW JERSEY CONSTITUTION OF 1844 http://www.njstatelib.org/Research_Guides/Historical_Documents/nj/1844_00.html. (Accessed December 15, 2007)

20. However, annotations to the 1844 Constitution in the NJ Compiled Statutes 1709-

1910, Vol. 1 (1911), contain contradictory assertions:

Local self-government – The whole constitution may be searched in vain for any specific provision guaranteeing to the people the right of local self-government, or prohibiting the legislature from exercising powers of local government through the instrumentality of commissions, however chosen. The argument for the existence of such an alleged right is not aided by the language of the preamble. Booth v. McGuinness, 78 L. 346, 75 A. 455.4 (1 NJ Comp. St., NJ Constitution of 1844, Preamble, at p. liii)

21. Footnotes to Article IV, Section I of the 1897-amended Constitution, state:

Scope of power in general – the legislative power is vested in the legislature, and cannot be exercised directly by the people, or in any other mode than that prescribed by the constitution, and an act passed in any other way is void. Paterson v. Society, 24 L. 385. But such power is not omnipotent. It has boundaries beyond which it may not pass. It cannot authorize private property to be taken for public use, without providing for a just remuneration; and in regard to those public rights which appertain to the citizens generally – a. common property – it cannot make such disposition of them as entirely to defeat the citizens of their common rights. Atty Gen. v. Stevens, 1 E. 369. Nor can the legislature divest itself or its successors of its sovereignty or extinguish the trusts committed to its custody for the public welfare. It not only may, but must, determine in what manner that

4 But Booth also held that: “The Legislature may impose its will as law upon municipalities, but if some other will is to intervene, it must be that of the people who are to be governed by such municipal law and not an alien will, even though it be that of the governing body for the time being of such municipality.”

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sovereignty shall be exercised. Canal Co. v. Railroad Co., 16 E. 321. (1 NJ Comp. St., NJ Constitution of 1844, Article IV, Section I, at p. lxiv-lxv)

22. And further:

Local option laws – a law granting municipal powers may be enacted to take effect only upon its adoption by the popular representative body of each locality to be affected; DeHart v. Atlantic City, 62 L. 586, 41 A. 687. See Warner v. Hoagland, 51 L. 62, 16 A. 166, Kennedy v. Belmar, 61 L. 20, 38 A. 756. The grant of power to a plank road or turnpike company to appropriate a public road to their use, upon obtaining the consent of a majority of the voters of the township, is not a delegation of the law-making power to the people. Morgan v. Monmouth Co., 26 L. 99. A provision that a municipal charter shall not take effect until approved by a majority of the inhabitants in the district incorporated is not a delegation of legislative power. Paterson v. Society, 24 L. 385. (1 NJ Comp. St., NJ Constitution of 1844, Article IV, Section 1, at p. lxvi)

23. And further:

To municipalities – the grant of powers of local government to a municipal corporation is not a contract, but an exercise of legislative power; and the legislature may, at any time, take away, resume or limit such power. State v. Branin, 23 L. 485; Paterson v. Society, 24 L. 385; Rader v. District, 36 L. 273; Jersey City v. Railroad Co., 20 E. 360. (Emphasis added). (1 NJ Comp. St., NJ Constitution of 1844, Article IV, Section I, at p. lxvi)

24. These 1897 amendments were adopted during the first major wave of judicial

decisions empowering business corporations with Constitutional rights while

stripping municipal corporations of similar legal status, thus enabling business

executives to control mechanisms of public government in their private interests at

the expense of public democratic self-governance.5 Although no longer in force

5 See, e.g., Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886) (declaring that corporations were protected as “persons” under the equal protection clause of the 14th Amendment); Minneapolis & St. Louis Railroad Company v. Beckwith, 129 U.S. 26 (1889) (declaring that corporations were protected as “persons” under the due process clause of the 14th Amendment); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (declaring that corporations possess 1st Amendment rights); Hale v. Henkel, 201 U.S. 43 (1906) (declaring that corporations possess 4th Amendment rights); Noble v. Union River Logging R. Co, 147 U.S. 165 (1893) (declaring that corporations possess 5th Amendment due process rights); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) (declaring that corporations possess 5th Amendment “takings” clause rights); Fong Foo v. United States, 369 U.S. 141 (1962) (declaring that corporations possess 5th Amendment double jeopardy clause rights); and Dartmouth College v. Woodward, 4 Wheat. 518 (1816) (declaring that corporate charters were protected by the Contracts Clause of the U.S. Constitution).

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subsequent to the Constitutional Convention of 1947, which put in place the current

NJ Constitution, these amendments beg the question: “By whose authority did the

legislature obtain power to begin?” The only possible answer: the authority of the

People, who perpetually retain the right to reclaim their inherent authority.

25. Relevant portions of the NJ Constitution of 1947 include:

1. All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness…

2.a. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it…

18. The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances…

21. This enumeration of rights and privileges shall not be construed to impair or deny others retained by the people. (NJ CONSTITUTION OF 1947)

26. N.J.S.A. Title 41:1-1, Oaths and Affidavits, is further evidence that, however masked

by intervening and contradictory legislation and judicial decisions, all political

power in America issued from the People at our nation’s inception, and perpetually

belongs to the People.

The source of the oath requirement in general is the New Jersey Constitution, which specifies that an oath of office and an oath of allegiance must be taken by “every state officer.” N.J.Const., Art. VII, §1, ¶1…

under Title 41, Oaths and Affidavits, state officials include: “Every person elected or appointed to a public office in any county, municipality or special district, or in any department, board, commission, agency or instrumentality of any of them…”

The NJ Oath of Office reads: "I, ______ do solemnly swear (or affirm) that I will faithfully, impartially and justly perform all the duties of the office of _____ to the best of my ability.”

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The NJ Oath of Allegiance: "I, ____________, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will bear true faith and allegiance to the same and to the Governments established in the United States and in this State, under the authority of the people.” (Emphasis added.)

New Jersey Law Revision Commission Final Report Regarding Oaths and Affidavits (1999) www.lawrev.state.nj.us/rpts/oaths.doc (Accessed December 16, 2007)

27. The text of the 1776 Pennsylvania Constitution bears out the same interpretation.6

“The People, who are sovereigns of the state, possess a power to alter when and in

what way they please. To say [otherwise]…is to make the thing created greater than

the power that created it.” Fed. Gazette, 18 Mar. 1789, (reprinted in Matthew J.

Harrington, Popular Sovereignty in Pennsylvania 1776-1791, 67 TEMP. L. REV. 575

(1994)).

6 WHEREAS all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man; and whenever these great ends of government are not obtained, the people have a right, by common consent to change it, and take such measures as to them may appear necessary to promote their safety and happiness...

A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania…

IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

V. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or set of men, who are only part of that community: And that the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal. PENNSYLVANIA CONSTITUTION OF 1776, CH. I, sections III–V (emphasis added) (reprinted in Gormley, THE PENNSYLVANIA CONSTITUTION at 878).

The language here is significant. People are the source of all governmental power - which governments must exercise for the common benefit of people, nations, or communities - and to ensure that this is so, the “community” has “an indubitable, unalienable and indefeasible right to reform, alter or abolish government.” It is not the state that holds the right, nor elected officials or governmental bodies, nor corporate interests. Rather, communities of people naturally have a right to self-government, and they are powerless only in their inability to alienate that right to anyone. (Office of Attorney General v. East Brunswick Township and East Brunswick Township Board of Supervisors, Commonwealth Court of Pennsylvania, No. 476 M.D. 2007, Brief of Respondents in Opposition to Application for Summary Relief, Thomas Linzey, Esq., p. 40)

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28. The passage of time and the actions of legislatures and courts have weakened the

general public passion for self-governance, but the time is ripe for links to our early

revolutionary history to be re-forged, because Plaintiff and the People of North

Plainfield are now confronted with the same injustices that incited our forebears to

revolution: executive and legislative refusal to assent to laws “wholesome and

necessary for the public good,” (the Ordinance), and illegitimate authority,

nonetheless asserted by the Legislature and the Courts, via Defendants’ Motion to

Dismiss, to forbid the People to “pass laws of immediate and pressing importance”

without the express consent of the Legislature (citing the MLUL in the instant case)

and the Courts (citing the judicial precedent of corporate personhood).

29. Similarly, the allegiance-protection bond between North Plainfield citizens and

government has been broken, and it is therefore our right to withdraw our

allegiance, reclaim our inherent legislative authority, and protect ourselves.

30. And, as the Declaration of Independence identified the source of just governing

power as “the consent of the governed,” and since it is clear that the People of North

Plainfield do not consent to laws favoring the claimed rights and privileges of

business corporations over the rights of the People, and since legal proof of this is

dependent upon the initiative power of the People of North Plainfield to enact the

proposed Ordinance, therefore there is no justice in any exercise of governing

powers that deprives the People of their self-governing prerogative, nor in any law

or judicial act that coerces, against the consent of the People, a deprivation of those

rights.

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POINT TWO – Defendants Motion to Dismiss Should Be Denied Because the Faulkner Act is Intended to Protect and Set Forth Procedures for Self-Governance, and Protects an Absolute Right, Not a Privilege That May Be Bestowed or Withdrawn at the Legislature’s Will.

31. The relevant portion of the Faulkner Act, N.J.S.A. 40:69A-184, reads:

Petition; percentage of legal voters required The voters of any municipality may propose any ordinance and may adopt or reject the same at the polls, such power being known as the initiative…

32. “Statutory provisions for initiative and referendum as to municipal ordinances are

generally liberally construed to effect salutary objective of popular participation

in local government.” (emphasis added) In re Certain Petitions for a Binding

Referendum, 154 N.J. Super. 482 (App. Div. 1977).

33. “Faulkner Act should be liberally construed to effect its salutary purpose of

arousing public interest and placing in hands of voters direct means of

controlling proposed or enacted municipal legislation and accomplishing

enactment of legislation which has been neither proposed nor adopted” (emphasis

added) but “Faulkner Act does not imbue initiative proposed ordinances with any

qualities different from other ordinances; only municipal legislation that may be

enacted by governing body itself may be subject to initiative proceeding and in fact

people’s legislative authority is more restricted than governing body.” Maese v.

Snowden, 148 NJ. Super (App. Div. 1977).

34. “Initiative and referendum statutes should be liberally construed in order to

encourage public participation in municipal affairs in face of normal apathy

and lethargy in such matters.” (emphasis added). Margate Tavern Owners

Association v. Brown, 144 N.J. Super. 435 (App. Div. 1976), cert. denied 72 N.J. 45;

Sparta Township v. Spillane, 125 N.J. Super 519 (NJ Super Ct. 1973), cert. denied 64

N.J. 643.

35. But: “It is duty and obligation of court to promote objectives of people in securing

plebiscite upon question so long as demands of law which authorize same can be

complied with without invasion of any person’s rights.” Margate v. Brown, cite

above.

15

36. “Right to initiative and referendum in municipal affairs is a statutory and not a

constitutional right.” Atlantic City Housing Action Coalition v. Deane, 181 N.J. Super.

412 (Law Div. 1981). “While all political power is inherent in the people, it does not

necessarily follow that the voters may propose any ordinance and adopt the same at

the polls through the initiative process.” Ibid.

37. But the fact that political power is inherent in the people, does necessarily lead to

the conclusion that the voters may propose any ordinance and adopt the same at the

polls through the initiative process, because any other conclusion is contrary to

logic. An inalienable right is only an inalienable right if it cannot be abridged or

transferred by or to anyone for any purpose. Otherwise, it is a privilege, and not a

right.

38. Further inconsistent rulings: “ ‘Any ordinance’ as stated in Optional Municipal

Charter Law provision allowing voters to propose ‘any ordinance’ by initiative does

not mean all ordinances.” Sloan v. Lettieri, 171 N.J. Super 445 (N.J. Super. Ch. 1979).

For if the Legislature did not intend the word “any” to mean “all” ordinances would

be subject to initiative, then the statute would read, “voters may propose some

ordinances, at the discretion of the Legislature.” Unalienable rights such as self-

governance are rights that cannot be transferred to another7.

39. Again: “Legislature by speaking in clear, positive and unambiguous language can

provide for initiative and referendum in budgetary matters, but in absence of such

mandate appropriations and budgetary ordinances are not subject to initiative and

referendum,” (Cuprowski v. City of Jersey City, 101 N.J. Super. 15, affirmed 103 N.J.

Super. 217, (N.J. Super. L. 1968) cert denied 53 N.J. 80) a ruling which suggests that

voters never have the right of initiative unless the Legislature explicitly authorizes

the exercise of said right – clearly an interpretation directly opposed to the actual

wording of the initiative provision.

40. In recent years, Court endorsement of Legislative usurpation of the People’s

authority has become even more bald, emphasizing Court endorsement for private

7 (“Unalienable: Not to be separated, given away, or taken away; inalienable.” American Heritage Dictionary of the English Language, Fourth Edition, Houghton Mifflin Company (2006).

16

profit interests over public interests in such basic necessities as water and housing.

“Ordinance privatizing city’s water supply system, which ordinance was adopted

pursuant to elaborate regulatory and administrative framework of Water Supply

Public-Private Contracting Act, was not subject to referendum process.” We the

People Committee Inc. v. City of Elizabeth, 325 N.J. Super. (329 N.J. Super A.D. 1999)

41. And: “City Ordinance granting taxpayer a 20-year tax abatement pursuant to Long

Term Tax Exemption Law in connection with construction of large-scale residential

and commercial project in redevelopment plan area was not subject to Initiative and

Referendum Law; although city acted legislatively when it adopted ordinance and

Exemption Law did not provide for public hearings or judicial review, Exemption

Law, nevertheless, was an integral part of and a means of accomplishing goals of

Local Redevelopment and Housing Law and therefore was not subject to

referendum or initiative.” Millenium Towers Urban Renewal Ltd. Liability Co. v.

Municipal Council of City of Jersey City, 343 N.J. Super. 367(N.J. Super. L. 2001)

42. Local citizen democracy finally slipped into a deep coma in February of this year:

The political power of the people does not include the right to local initiative

and referendum unless that right is granted by statute. (Emphasis added.) In re

Referendum Petition to Repeal Ordinance 04-75, 388 N.J. Super 405 (N.J. Super A.D.

2006), as though the Faulkner Act were anything but a statute enshrining that very

right.

43. In case after case, the courts have contradicted themselves, stating that the right of

initiative is a fundamental right and necessary to promote citizen participation in

public affairs, and simultaneously ruling that, in situation after situation, the right is

not a right, but a revocable and regularly revoked privilege. These fundamental

contradictions are the direct result of the unauthorized usurpation of citizen self-

governance authority by the Legislature to essentially transfer those rights from the

citizenry at large to a privileged class of men identifiable by their wielding of

claimed “corporate rights” against the self-governing prerogatives of the People via

their local governing bodies.

44. Further, to the extent that the Legislature and Courts limit or outright bar citizen

access to the right of referendum, those levels of government promote voter “apathy

17

and lethargy,” by sending a clear signal to citizens that their meaningful

participation in local governance has been and is quashed by the Legislature

dictating the terms of local governance unilaterally in so many areas of local public

life.

45. To recap, Plaintiff and other Borough citizens, by voting, have delegated authority to

the Borough Council, Mayor, local boards and commissions, and to the Legislature.

46. Plaintiff and other Borough citizens have petitioned these governments for the

redress of wrongs, by appeal at public hearings, urging our representatives to act to

protect the health, safety and welfare of the citizens of North Plainfield from the

dangerous threats posed by intensified local flooding, pollution, traffic congestion,

school overcrowding and erasure of local history.

47. The government has proved unresponsive, time and time again, sometimes even

acknowledging8 that their hands are tied by the state legislature, via the MLUL, and

that, even if willing, they are not authorized to protect the health, safety and welfare

of their fellow residents.

48. Some citizens, including William Campbell, have sought and obtained cosmetic relief

from the Courts, through the filing of civil lawsuits, although this relief is of a kind

that merely compels exercising procedural compliance with statutes, not

substantive deference to general rights, and, in all likelihood such cosmetic relief

will prove temporary, as the Borough Council seems intent upon reinstating and/or

readopting the invalidated ARC ordinance.

49. Plaintiff and other Borough citizens therefore took direct action to protect the

citizens of the Borough, by drafting and circulating a proposed Ordinance for town-

wide vote and, if supported by a majority, adoption and implementation. The 8 Statement from Planning Board member David Branan: “Many people misunderstand the roles and limitations placed by New Jersey state laws on various municipal governing and advisory bodies. I have found this quite common with my experience on the Board of Education and see it also holds true with respect to the role of a local town planning board. Unfortunately, we don't have the power to block a particular development purely based on the feelings of a portion of the town populace whether a majority or minority. Our role is that of an adjudicator based on the demonstration of an applicant compared to clearly defined laws. Unlike supreme courts, we do not have even the implied authority to make laws or issue advisory opinions based on our adjudications. I strongly recommend that those who are interested in this issue, obtain a copy of the Municipal Land Use Law Chapter 291, Laws of N.J. 1975 which is the law establishing the existence of Planning Boards in the state of New Jersey as well as the rules governing their role. You can also find valuable information at the New Jersey Planning Officials website http://njpo.org.” (Posted at www.cnnorthplainfield.blogspot.com May 11, 2007)

18

government again stepped in to block an orderly and incremental effort to realize

community self-governance and self-preservation.

50. Should this Court render a decision that the blocking of the Ordinance petition is

lawful, Plaintiff and other citizens similarly situated will be left with few options for

recourse. We may attempt charter change, but again, will be severely hampered by

the Legislature’s Township Act of 1899, which eliminated the directly democratic

town meeting home rule option .9 Over time, Borough residents’ attempts to

legitimately exercise their local self-governing prerogatives may be so frustrated by

the legislature’s longstanding and continuing usurpation of our rights that we may

explore and seriously consider secession from the State of New Jersey.

51. Whether the people of North Plainfield can be roused from the “apathy and

lethargy” to which citizens tend, to the extent necessary to undertake a dissolution

of the Mayor and Council form of government or secession from the State is a

question of fact, answerable only by the passage of time10. Whether this Court will

uphold the citizens’ right to self governance, via the Faulkner Act initiative

provisions, and judicially endorse citizen action less disruptive to the social order

than dissolution of the local government or secession, is the matter of judicial

opinion at stake in this case.

9 “The Township Act of 1899 completely changed the way townships were governed. The townmeeting, a township institution for 101 years, was abolished, and all municipal legislative powers wereconcentrated in the hands of a greatly strengthened township committee. Instead of merely being a financial watchdog supervising the expenditureof township funds between town meetings, the township committee was upgraded to a policy-making body, empowered to pass ordinances and make certain appointments.” A History of Municipal Government in New Jersey Since 1798, Albert J. Wolfe, Former Bureau Chief, Bureau of Municipal Information, NJ League of Municipalities. http://www.njslom.org/history_municipal_govt.pdf (Accessed December 18, 2007)

10 However, The Legislature, by attempting to prohibit democratic self-governance in any genuine form, and the judiciary, by upholding those bars to community self-governance, play a role in pushing citizens away from more orderly and incremental political and social change toward less orderly and incremental political and social change.

19

POINT THREE – Defendants Motion to Dismiss Should Be Denied Because the Ordinance at Issue is Not a Zoning Ordinance and, To the Extent That Portions of the Municipal Land Use Law, in intent, wording and result, Strip the People of Self-Governance Rights, It is Unconstitutional and Those Portions Must Be Invalidated

52. Since the early 19th century, American legislatures and courts have endorsed and

legitimized the corporate usurpation of the citizens’ right to self-governance at the

municipal level.

In 1819 in Dartmouth College v. Woodward, the U.S. Supreme Court introduced a distinction between the rights of a public corporation and a private one. The U.S. Constitution’s contract clause did not protect the political powers granted in the charter of a public corporation such as a municipality. State legislatures could, therefore, unilaterally amend or revoke municipal charters and strip a city of authority without the municipality’s consent. But the charter of a private corporation, such as a business enterprise or a privately endowed college, was an inviolate grant of property rights guaranteed by the nation’s Constitution.”

During the late nineteenth century, American courts reinforced the subordination of municipal corporations to state legislative authority when they embraced Dillon’s Rule. In his standard treatise on the law of municipal corporations (1872), Judge John F. Dillon held that municipal corporations could exercise only those powers expressly granted by the state or necessarily incident or indispensible to those express powers. The municipal corporation was a creature of the state, and most courts interpreted Dillon’s Rule to mean that city governments only possessed those powers specified by the state. Although the distinguished Michigan jurist Thomas M. Cooley postulated an inherent right of local self-government that limited the state’s control over the municipality, American courts generally rejected this doctrine. Agreeing with Dillon, the late-nineteenth-century judiciary held that the words of the municipal charter defined municipal authority, and absent any authorization by the state, local governments had no right to act. Municipal Charters, Jon C. Teaford http://www.celdf.org/Default.aspx?tabid=480 (Accessed December 16, 2007)

53. A cascade of consequences followed from the Dartmouth decision. State legislatures

defined charters between the State and private corporations as contracts between

equals, but defined charters between the State and municipal corporations as non-

contracts, between a superior (the State) and an inferior (the municipality, as an

administrator working on the State’s behalf).

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54. The legal reasoning employed to further this sleight of hand hinged on defining

citizens of municipalities, not as individual incorporators competent to enter into

contracts as equal parties, but as tenants of the municipal corporation with no such

legal capacity. Corporate officers in private corporations, however, were and are

legally recognized as competent parties able to enter into contracts. The result:

private corporations became and continue to be equal partners with State governing

bodies, while municipalities and their citizens became, and continue to be,

subordinate to both the State and the private corporations.

55. Plaintiff also notes that, although both municipal and private, for-profit corporations

are chartered by the state Legislatures, only private, for-profit corporations have

been construed as “persons” by judicial precedent, for the purposes of civil rights

enforcement. Municipal corporations continue to be legal non-persons afforded no

civil rights protections under U.S.C. 42 § 1983. Monroe v. Pape, 365 U.S. 167 (1981);

Kenosha v. Bruno, 412 U.S. 507 (1973).

56. As the legal ramifications of the Dartmouth case have played out since 1819, private

corporations and business lobbying groups have used their role as equals to become

quasi-governing bodies, drafting and submitting preemptive bills to State

legislatures to regulate – in the private interest, not the public interest – questions

of common public concern from real estate and banking to energy services and

agriculture.

57. Once in the state legislature, these bills are adopted as preemptive codes, limiting

self-governance authority through municipal charters, land use laws (such as the

MLUL), environmental regulations, corporate codes, building codes, banking

regulations, electoral laws and other statutes.

58. Once adopted by the State legislature, these codes bind local municipal officials. The

codes are enforced by two local administrators – the local governing body and the

local solicitor. Those local officials, in turn, police their own populations, not to

protect the public health, safety and welfare, but to promote the original private

interests of the original corporate drafters of the preemptive bills passed by the

State legislature.

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59. The result is “virtual citizenship.” Under the U.S. Constitution, every citizen has

citizenship in the State and in the nation, but not in the municipality where he or she

actually lives. Thus, preemption is the doctrine whereby citizens elect state and

federal representatives, who then eliminate from the decision-making options an

array of decisions which the People themselves would choose. The legislatures,

backed by the courts, and on behalf of a class of men identifiable by the benefits they

accrue from the bestowal of personhood rights on corporations, have effectively

filtered citizens right out of American democracy, in every community under U.S.

jurisdiction. Preemption, then, is an illegitimate usurpation.

60. This usurpation has directly blocked North Plainfield citizens, including Plaintiff,

from exercising their inherent right of self-governance, through the adoption and

enforcement of the Municipal Land Use Law, which only intensified preemption of

local authority established by prior versions of the state land use regulations.11

61. The MLUL was adopted in 1975, not to protect the public welfare of local

communities from harms such as residential overcrowding, environmental

destruction and sprawling development, but to promote additional construction.

The Statement of the Senate County and Municipal Government Committee on

referring the bill, made this clear by stating that, among the principle changes in

Article I (General Provisions) the MLUL: “requires the conditional granting,

contingent upon appropriate action by other administrative or judicial bodies, of

approval to any development application which otherwise conforms with a

municipality’s land use regulations. (Section 13).” (Emphasis Added). Senate County

and Municipal Government Committee Statement to Senate, No. 3054, Article 1, Point

5, p. 2 (May 8, 1975)

62. Likewise, the Committee Statement notes that:

Article 9. Zoning Board of Adjustment….6. Establishes presumption of approval of application whenever board of adjustment fails to render decision within prescribed time (sections 61 and 63) – at present, inaction

11 For an extensive list of state codes limiting or removing local control from local hands, see Home Rule in the 90s: Is it Alive or Dead? By John Trafford, Former Executive Director of the New Jersey State League of Municipalities. http://www.celdf.org/HomeRule/DoesmyStatehaveHomeRule/HomeRuleinNewJersey/tabid/162/Default.aspx (Accessed December 17, 2007)

22

constitutes a rejection of an application. (Emphasis added). (Id, at Article 9, Point 6, p. 6)

In other words, prior to the MLUL overhaul, applications were automatically

rejected at the end of the application deadline if the local board took no action. Since

the MLUL overhaul, they must be automatically accepted. The MLUL contains no

legitimate grounds upon which a municipal governing body may deny an

application that conforms with height, setback, frontage and other technical

requirements as established under the state framework by individuals far less

accountable to the local citizens in each municipality.

63. Finally, the MLUL, while calling for periodic reexamination of Master Plans every six

years, expressly prohibits moratoria on site plan review and construction “except in

cases where the municipality demonstrates on the basis of a written opinion by a

qualified health professional that a clear imminent danger to the health of the

inhabitants of the municipality exists, and in no case shall the moratorium or

interim ordinance exceed a six-month term.” (N.J.S.A. 40:55D-90)

64. The import of this passage is that, under the MLUL, no municipal governing body,

planning board or zoning board of adjustment ever has the authority to decide – on

the basis of population density, school overcrowding, traffic congestion, pollution,

environmental destruction, flood risk or any other threat to the public health, safety

and welfare: “No more building.”

65. Language throughout the MLUL speaks of the developer/applicant’s obligation to

prove the application is “entitled” to approval, (N.J.S.A. 40:55D-10.3) and the

developer/applicant’s right to default approval (N.J.S.A. 40:55D-10.4). The

entitlement right runs to the developer, to build, not to the Borough, to locally

control and (if required by the public health, safety and welfare) limit development.

66. The intent and result of the MLUL of 1975 was given its clearest expression in

Governor Brendan Byrne’s Jan. 14, 1976 Press Release upon signing it into law:

Governor Brendan Byrne signed into law today a bill designed to reform the procedures for the planning and regulations of land uses. The measure, S-3084, sponsored by Senator Martin L. Greenberg, D-Essex, is intended to streamline the administrative process in acting on subdivisions and other land use decisions.

23

Among other things, the bill gives local planning boards the power to grant non-use variances as part of its review of site plans and subdivisions. The measure also empowers local boards of adjustments to grant use variances instead of the present practice of requiring additional approval by the municipal governing body. At the same time it grants a use variance, the board would have the authority to approve site plans, subdivisions and conditional uses.

The bill establishes specific time periods in which local agencies must act on applications.

“This measure should reduce costs, cut red tape and promote needed construction,” said Byrne. He said one of the purposes of the bill is to establish a “one-stop shopping” approach by eliminating the need to obtain approvals from several local agencies.

67. Although the author of the press release attempted to frame the law as a way to

empower local boards, the irrefutable and explicit intent and result of the law was to

reduce costs for developers, cut red tape for developers and promote construction

activity for developers. The law codified the state’s view that municipalities are not

unique communities inhabited by living, rights-bearing human individuals, but land

retail outlets at which land developers “shop” for the highest, quickest profits

regardless of the needs of, or impact on, the residents.12

68. Of particular note for North Plainfield, the MLUL “requires planning board to make a

copy of each development application available to the environmental commission

when said commission has completed and submitted for approval an index of

natural resources of municipality.” (N.J.S.A. 40:55D-27(b) )

69. Our local Environmental Commission has not prepared a Natural Resources Index.

However, even if the Environmental Commission had done such an index, the MLUL

only requires that the planning board give the commission “an informational copy of

every application for development submitted to either board,” noting that “Failure

of the planning board or board of adjustment to make such informational copy

12 Passage of the Ordinance would send a clear signal to those developers interested in profiting from further flooding and soil runoff into our brooks, pollution of our air, congestion of our streets, overcrowding of our schools, deforestation of our landscapes, and destruction of our history: shop someplace else.

24

available to the environmental commission shall not invalidate any hearing or

proceeding.” In sum, the MLUL recognizes neither Planning Board nor

Environmental Commission authority to deny an application on environmental

grounds.

70. As if aware that the public might well be roused to effectively object to the

streamlining effect of the MLUL, when fully aware of the implications, the

Legislature inserted the provision at issue in the instant case: “No zoning ordinance

and no amendment or revision to any zoning ordinance shall be submitted to or

adopted by initiative or referendum.” (N.J.S.A. 40:55D-62(b))

71. As predicated by Dartmouth and all that followed, this preemption is currently being

enforced, against the People of North Plainfield, by the Borough Council, which has

refused to consider or adopt the Ordinance as submitted by Plaintiff on behalf of the

Committee of Petitioners and petition signatories, and by the Borough Attorney,

Defendant Eric Bernstein.

72. To the extent that the Ordinance at issue herein addresses land use, and may,

therefore, be construed to fall under the above provision barring zoning by initiative

and referendum, Plaintiff contends that the inserted provision is an unconstitutional

and anti-democratic arrogation of local police powers by the state legislature, and

should be invalidated by this Court.

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POINT FOUR – Corporate “Personhood” is a judicial construct that may be deconstructed by the People through exercise of their inherent, inalienable and indefeasible right to self-governance at the municipal level.

73. The concept of corporate “personhood” is well-established in judicial precedents at

the federal level, as outlined above, in Footnote 5, and in both statutes and judicial

precedents at the state level, as outlined in Defendants’ Brief in Support of the

Motion to Dismiss, at pages 9 and 10.

74. However, the American system of law is designed to strike a balance between the

static and the dynamic, upholding those aspects of prior case law which hew most

closely to the founding ideals of our country, and overturning the precedents that

betray those ideals as soon as the betrayal becomes clear.

75. We are at a historical moment marked by the intertwining of global corporate

power and global climate change, demanding of all citizens a renewed global

emphasis on participatory democracy, supported by judicial dynamism that

recognizes the rapidly changing circumstances of the human species. The challenges

posed by corporate globalization and global climate change are posed at the global

level, but their effects are experienced by individual people and communities at

the local level, and it is here, at the local level, that those effects must be anticipated

and addressed.

76. If ordinary citizens are to come together to effectively respond to the problems we

already confront (i.e., repeated flooding, overcrowded schools, pollution, traffic

congestion) and meet the challenges ahead, we can no longer permit the invention

of corporate “personhood” – and the attendant privileging of the class of men in

control of those corporations – to tie our hands, using their recourse to the

Constitution and laws of the land.

77. The personhood of corporations is not like the personhood of African Americans,

finally recognized when the adoption of the 13th, 14th and 15th Amendments to the

Constitution overturned the judicial precedent that African American human beings

were not persons, but property, set in Dred Scott v. Sandford, 63 U.S. 393 (1856) or

the personhood of women, finally recognized, albeit to a limited extent, when the

19th Amendment finally extended suffrage rights to women. A corporation is not a

26

real, living, human being who must cope with a changing world. A corporation is a

created fiction, and a pathological one at that.

78. Accepting the corporate personhood assumption at face value, and using the World

Health Organization’s checklist for personality types and the Diagnostic and

Statistical Manual of Mental Disorders, documentary filmmaker Joel Bakan, (The

Corporation, 2004) concluded that the corporation is a psychopathic personality,

based on the following symptoms: “a callous unconcern for the feelings of others; an

incapacity to maintain enduring relationships; a reckless disregard for the safety of

others; a pattern of deceitfulness; an incapacity to experience guilt; failure to

conform to social norms with respect to lawful behavior.”

79. It is precisely those characteristics, mandated by the corporation’s sole legal

obligation (to increase shareholder profit), that, stamped with the legislative and

judicial imprimatur of legitimacy, have allowed corporations to steadily build up the

power to trample the rights of living, breathing humans, virtually all of whom are

emotional; able to form and maintain enduring relationships; deeply concerned with

the safety of others (particularly loved ones); generally honest; capable of

experiencing guilt for wrongdoing; and tending to conform to social norms with

respect to lawful behavior.

80. When American businessmen first began to form corporations, they did so by

obtaining corporate charters from state legislatures. Each charter would necessarily

set forth the public purpose for the incorporation, such as constructing railroads or

canals, and the duration of the charter, which was always limited to a few decades at

most. . Incorporation for private profit was, at the outset of the American nation,

routinely disallowed by the state legislatures.

81. This broadly followed policy was a direct result of the Colonists’ bad experiences

with the dominant corporations of the era, such as the British East India

Corporation, and their desire to establish a default rule limiting, rather than

expanding, corporate power, and clearly subordinating corporate power to the will

and consent of the People.

82. In the early days of the republic, New Jersey followed this national policy. For

example, the 1844 Constitution stated:

27

Article IV – Section VII.

8. The assent of three-fifths of the members elected to each house shall be requisite to the passage of every law for granting, continuing, altering, amending, or renewing charters for banks or money corporations, and all such charters shall be limited to a term not exceeding twenty years. (NJ CONSTITUTION OF 1844, Article IV, Section VII, Paragraph 8)

83. But as political and economic power has concentrated, once again, among the

wealthiest individuals, the limitations imposed on corporations have gradually been

lifted, and the privileges and immunities of a special class of men have been just as

routinely expanded and protected under law and jurisprudence. Paragraph 8 was

removed from the 1844 Constitution by amendment in 1875 and replaced by

Paragraph 11, including:

“…The legislature shall pass no special act conferring corporate powers, but they shall pass general laws under which corporations may be organized and corporate powers of every nature obtained, subject, nevertheless, to repeal or alteration at the will of the legislature.” (NJ CONSTITUTION OF 1844 As Amended in 1875, Article IV, Section VII, Paragraph 11).

84. The 1875 Constitutional provisions regarding corporations have been retained,

virtually intact, in the current Constitution, codified in the statutes derived

therefrom, and upheld in the case law cited by Defendants:

The Legislature shall pass no special act conferring corporate powers, but shall pass general laws under which corporations may be organized and corporate powers of every nature obtained, subject, nevertheless, to repeal or alteration at the will of the Legislature. (NJ CONSTITUTION of 1947, Article IV, Section VII, Paragraph 9.) (Emphasis added).

85. Yet those Constitutional provisions, statutes and cases represent the worst of the

undemocratic, authoritarian, repressive and illegitimate abuses of power against

which the American Revolution was fought, because rights bestowed upon

corporations and the class of men who control them, upheld by the Courts and

enforced by the police powers of the State, are necessarily rights stolen from the

People.

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86. For clear evidence that these two concepts: corporate personhood and democratic

self-governance – are in direct conflict, this Court need look no further than the

instant controversy, which utterly revolves around the Borough Attorney’s

intervention, on behalf of corporate land developers, with significant legislative and

judicial backing, to deprive the People of North Plainfield of our democratic right to

self-governance to protect the public health, safety and welfare, the most

fundamental right that our forebears lived and died to establish and defend.

87. To the extent that Defendants may argue that the Ordinance bars the free exercise of

any individual, rather than corporate, property rights, the facts are otherwise. Under

the proposed ordinance, any sole proprietor with the capital to purchase the

property from the current owners and willing to tolerate personal liability for every

consequence of land development, would still be able to raze the buildings, destroy

the forest and build residential structures. Few individuals possess the capital to

engage in large-scale historic and ecologically destructive land development, and

fewer such individuals would risk their capital on a project, in a community, that

would hold them fully liable for any and all damaging consequences of their land

development activities. The ordinance is essentially a gamble on this premise: that

having a local law stripping corporate developers of the shield of the corporate

structure, better protects the health, safety and welfare of the townspeople, and the

history and ecology of the land, than not having such a law.

88. Plaintiff does not seek the Court’s opinion as to whether citizen power and

corporate power are incompatible in North Plainfield; such is a plain fact.

89. Similarly, Plaintiff does not seek the Court’s opinion as to whether the Ordinance

would render property rights less protected than personal or civil rights

(Defendants’ Brief, p. 10). Plaintiff argues that all rights – personal, civil and property

– if bestowed upon corporations, privilege corporations, and specifically empower

that class of men who benefit from those extra rights and privileges to trample over

the fundamental human rights of individual members of our community and our

community as a whole.

90. Plaintiff seeks the Court’s opinion as to which party possesses judicial backing for

their claim to the inherent authority of local control – the State-chartered

29

corporations, via the State as represented by Defendants, or the People, directly and

democratically, via the initiative provisions of the Faulkner Act. Plaintiff asserts, and

requests the Court rule, that prior judicial decisions purporting to limit or nullify the

People’s right to self-governance have been and remain unconstitutional and must

now be overturned.

91. Although Defendants assert that “there is no possible construction of this ordinance

which would or could pass constitutional muster,” (Defendants’ Brief at p. 11) there

is at least one such possible construction: that power inheres in the People, and that

they have, at all times, the right to alter or abolish laws so as to ensure their health,

safety and welfare and the inviolability of their rights, including but not limited to a

right to self-government and a republican form of government.

30

POINT V – Defendants Motion to Dismiss Should Be Denied Because Plaintiff Seeks Corrective Action from Defendants, Not Damages, and Because Immunity Applies to Acts Within Defendants Discretion as Municipal Officials, Which Rejection of the Petition Was Not.

92. In their ministerial and advisory capacities, the Municipal Clerk and Municipal

Attorney plainly lack the discretionary authority to independently determine the

legal sufficiency of initiated ordinances under the Faulkner Act (Atlantic Housing

Action Coalition v. Deane, 181 N.J. Super. 412 (Law Div. 1981); S-1177 and A-3436 in

the 2006-2007 Session of the New Jersey Legislature), so immunity as outlined in

N.J.S.A. 59:2-3(a) and 59:3-2, and in Amelchelko v. Freehold Borough, 42 N.J. 541

(1964) are inapplicable to this situation.

93. Even if the Municipal Clerk and Municipal Attorney believe the Ordinance to be

legally insufficient, the Faulkner Act requires them to refer their question for

adjudication by the Courts. This they failed to do, prompting this lawsuit, which has

now achieved the result of judicial review.

94. Further, Plaintiff seeks no damages, only corrective action to remedy Defendants’

unlawful denial of Plaintiff’s fundamental right to self-governance under U.S.C. 42

§1983, to wit, reinstatement of the ordinance petition on the initiative track toward

a Borough-wide vote.

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CONCLUSION:

95. At its source - the People - democracy must be engaged at the community level.

Decisions made by any other units – the individual monarch, the aristocracy, the

state or the nation-state – are too far removed from the lives and concerns of the

People.

96. The People, within the communities where they live, are the source of democratic

power. They may choose to delegate their power to the use of other units, but such

delegation never implies permanent abdication of power. It is always temporary,

partial and revocable by the People, within their communities. Indeed, and as

Thomas Jefferson noted in the Declaration of Independence, in practical application,

the People are unlikely to choose to re-assume authority delegated to other units of

government unless the bond of allegiance and protection has been broken, as in the

instant case.

97. If the Faulkner Act initiative provisions are to be construed as only applicable in

instances in which the local governing authority already has the power to act

responsively in the public interest, then those provisions are meaningless. For the

citizens are most likely to seek recourse in the initiative procedures in the breach,

when the local government is either unwilling or unable to act in the best interests

of the community as a whole. And to the extent that the governing body may find

itself helpless to protect its citizens, it is due to past power usurpation by the

legislature, on behalf of the corporate class, not due to current overreaching by the

self-governing citizens of the community. The People cannot overreach, so long as

they delegate no power that would, in its effect, nullify rights, because all power

inheres in us and we cannot, even should we so desire, finally and permanently

renounce that natural authority. We can only delegate it until such time as

circumstances require us to take it back. The exercise of that power by a delegated

body, which works to effect a deprivation or nullification of the self-governing rights

of a community, marks such a circumstance.

98. When corporations arrogate unto themselves the right of self-governance in every

community in the State, through the drafting and adoption of preemptive laws, and

find support in the laws and courts, the natural rights held by human individuals

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find no protection whatsoever under the law, and the legitimacy of human law is

itself called into question. Either the precedent continues, and the People will

continue to lack recourse to democratically adopted local legislation to protect our

lives and liberties, or the precedent will be overturned. Defendants’ view is that the

State may invalidate the People’s right to self-governance. Plaintiff’s view is that

such excessive State power must be reigned in if we are to sustain democracy in

America. This Court must either uphold the State’s right to pre-empt the People’s

right to self-governance or uphold the People’s right to self-governance.

99. Based on the foregoing, and without repeating at length, Plaintiff respectfully

requests that Defendants’ Motion to Dismiss be denied, and that Plaintiff’s request

for an Order compelling Defendants to immediately recommence signature

certification under the Faulkner Act initiative petition be granted.

Respectfully submitted,

KATHERINE WATTPlaintiff Pro Se

By: ______________________________________Katherine Watt

Dated: December ______, 2007

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