The Ruins of Trenton

A panel of three Appellate Division judges Tuesday heard the case of former Police Director Joseph Santiago and what his current predicament means to the continued existence of Trenton’s residency ordinance.

Attorney George Dougherty, on behalf of the plaintiffs, argued the original decision handed down by Judge Linda Feinberg stripping the city’s residency law of waiver provisions and vacating the office of Mr. Santiago was appropriate, and did not require either the addition of new residency waiver sections or the trashing of the ordinance altogether.

Attorneys for Mayor Douglas H. Palmer and Mr. Santiago maintained that Judge Feinberg had correctly assessed that Trenton’s residency waiver provisions did not adhere to superceding state law, there invalidating them. But they again said they disagreed with Judge Feinberg’s remedy to that issue, in cutting off the waive provision and giving Trenton City Council the ability to amend the law to include waiver consistent with state law.

“We believe Judge Feinberg got the diagnosis right, and the cure wrong,” said Mayor Palmer’s attorney, Angelo Genova.

Mr. Genova said the three judges should fashion a court order instructing City Council to adopt an ordinance conforming to the superceding state law, including waiver provisions providing avenues to save the embattled director, whose employment has been in jeopardy due to court action threatening to oust him over non-residency.

Some of the judges seemed skeptical over the idea that the waiver portions deleted by Judge Feinberg required a rewriting of the entire ordinance, rather than simply taking action on the “relevant portions” of the law, which Judge Feinberg did in her earlier decision.

One judge questioned the position that the waiver sections and their invalidation required a brand-new ordinance.

“They had the ordinance for years and years and years, and it was apparently satisfactory,” he said.

“Aren’t we only talking about the waiver provision?” asked another.

Mr. Santiago's attorney, Salvatore Alfano, said that by leaving the earlier decision in place the judges will have continued to strip Mayor Palmer of the ability to appoint outside candidates to city positions in special circumstances."

Mr. Dougherty, attorney for the group of plaintiffs – including me – argued that attorneys for Mayor Palmer and Mr. Santiago were misrepresenting the relationship between residency ordinances and the superceding state statute, adopted in 1978.

He said the state statute was not designed to work as a “Venus Flytrap” that swooped in and bit any municipality that chose to amend an existing residency ordinance with requirements to adopt the state law’s language in its entirety.

“It does not say here is the liturgy, and if you make a mistake, you lose the baby with the bath,” Mr. Dougherty said.

He said state legislators could have included language into the statute warning municipal officials of the imminent threat to their existing residency ordinances, if they really intended to catch any ordinance editors with requirements to adopt the state law, equally and in full.

“They could have written that,” Mr. Dougherty said.

He pointed to language included in the state law that states that ordinances “are subjected to the relevant provisions” of the statute, and not the law in its entirety.

A final decision on the matter is expected to be handed down within two weeks. Judges at the hearing hinted at granting another grace period, to offer City Council the ability to either amend the ordinance or take further action. There is also, of course, the possibility that the three judges will move to uphold the earlier Superior Court decision.