NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A- 0356

- 22 A- 0560

- 22 JERSEY CITY UNITED AGAINST THE NEW WARD MAP, DOWNTOWN COALITION OF NEIGHBORHOOD ASSOCIATIONS, GREENVILLE NEIGHBORHOOD ALLIANCE, FRIENDS OF BERRY LANE PARK, RIVERVIEW NEIGHBORHOOD ASSOCIATION, PERSHING FIELD NEIGHBORHOOD ASSOCIATION, SGT. ANTHONY NEIGHBORHOOD ASSOC., GARDNER AVENUE BLOCK ASSOCIATION, LINCOLN PARK NEIGHBORHOOD WATCH, MORRIS CANAL REDEVELOPMENT CDC, HARMON STREET BLOCK ASSOCIATION, CRESCENT AVENUE BLOCK ASSOCIATION, DEMOCRATIC POLITICAL ALLIANCE, and FRANK E. GILMORE, in his individual and official capacity as Ward F Councilman, Plaintiffs-Appellants,

v. JERSEY CITY WARD COMMISSION and JOHN MINELLA, in his official capacity as Chair of the Commission, APPROVED FOR PUBLICATION March 12 , 2024 APPELLATE DIVISION2 A- 0356

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Defendants-Respondents.

________________________________ JAMES CALDERON, Plaintiff-Appellant,

v. CITY OF JERSEY CITY WARD COMMISSION, JOHN MINELLA, Chairman, SEAN J. GALLAGHER, Secretary, and Commissioners DANIEL E. BECKELMAN, PAUL CASTELLI, JANET LARWA, and DANIEL MIQUELI, Defendants-Respondents.

_______________________________

Argued November 27, 2023

– Decided March 12, 2024Before Judges Gilson, DeAlmeida, and BishopThompson. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No s. L-0 960

- 22 and L- 0821

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. Renée W. Steinhagen argued the cause for appellants in A- 0356

- 22 (New Jersey Appleseed Public Interest Law Center, Inc., Matsikoudis & Fanciullo, LLC, and Yae l Bromberg (Bromberg Law LLC), attorneys; Renée W. Steinhagen, Yael Bromberg, and William C. Matsikoudis, on the briefs).3 A- 0356

- 22 James Calderon, appellant in A- 0560

- 22 , argued the cause pro se. Jason F. Orlando argued the cause for respondents (Murphy Orlando LLC, attorneys; Jason F. Orlando an d Tyler Newman, on the briefs ). The opinion of the court was delivered by GILSON, P.J.A.D. Following the 2020 decennial United States Census, the City of Jersey City Ward Commission (the Commission) redrew the si x election wards for the City of Jersey City (the City). In these two appea ls, which we consolidate for purposes of this opinion, plaintiffs challenge the ward boundaries and map adopted by the Commission. Plaintiffs appeal from orders dismissing their com plaints in lieu of prerogative writs, contending that the new ward map violates the Municipal Ward Law (the MW Law), N.J.S.A. 40:44-9 to -18, the New Jer sey Civil Rights Act (the CR Act), N.J.S.A. 10:6-1 to -2, and their rights of free speech, free

as sociation, and equal protection under the New Jerse y Constitution. They also argue that the Commission did not comply with the O pen Public Meetings Act (the OPMA), N.J.S.A. 10 :4

- 6 to - 21

. Having reviewed these arguments in light of the re cord and law, we affirm in part and reverse in part. We affirm the dismiss al of plaintiffs' claims asserting4 A- 0356

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violations of their constitutional rights, the CR A ct, and the OPMA. We reverse the dismissal of the claims of violations of the MW Law. Resolution of those statutory claims requires some, albeit limited , fact-finding. Thus, we remand the MW Law claims for further proceedings.
I. The Legislature allows municipalities to adopt a c harter or form of government under which a municipality is divided into wards for the purpose of electing members of the municipal governing body. N.J.S.A. 40:44-10. When a municipality adopts that form of government, the MW Law identifies the commissioners who will create the wards and periodically reassess and adjust those wards. See N.J.S.A. 40:44- 11 , - 13

. The MW Law provides that the commission shall be composed of the members of the county board of elections and the municipal clerk. N.J.S.A. 40:44- 11. The MW Law also provides that the municipal ward c ommission "shall" divide the municipality into "compact and contiguou s" wards that are roughly equal in population. N.J.S.A. 40:44-14. In that r egard, the MW Law states:

The ward commissioners shall fix and determine the ward boundaries so that each ward is formed of compact and contiguous territory. The population o f the most populous ward so created shall not differ f rom the population of the least populous ward so create d by more than [ten percent] of the mean population of t he5 A- 0356

- 22 wards derived by dividing the total population of t he municipality by the number of wards created. The m ost recent [f]ederal decennial census shall be used as the population determinant. [Ibid.] Wards must be evaluated and, if necessary, adjuste d every ten years based on the federal decennial census. In that regard, t he MW Law states:

Within [three] months following the receipt by the Governor of each federal decennial census, the ward commissioners shall meet in the manner provided in subsection a. of this section and proceed to make s uch adjustments in ward boundaries as shall be necessar y to conform them to the requirements of this act. [N.J.S.A. 40 :44 -13(c).] The City is, and has been for decades, divided int o six election wards: Wards A, B, C, D, E, and F. In 2020, the United St ates Census was conducted, and, on September 16, 2021, the Governor promulgate d the results. The 2020 Census revealed that Ward E, the largest ward by po pulation in the City, was fifty-nine percent more populous than Ward D, the l east populous ward. As of the 2020 Census, Ward E had 69,524 residents, while Ward D had 40,733 residents. Therefore, under the MW Law, the Commis sion had to redraw the City's ward boundaries and related map.6 A- 0356

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The MW Law required the Commission to hold at leas t one meeting, which wa s to be within three months of the receipt of the 2 020 Census by the
Governor

. Ibid. The MW Law also provided that the Commission can hire and be assisted by a surveyor, an engineer, and "other assistan ts as shall be necessary to aid [the Commission] in the discharge of [its] d uties." N.J.S.A. 40:44- 12. The Commission was to prepare a report on the boundaries of the wards, to gether with a map, and the report was to be certified by a t least three Commissioners

. N.J.S.A. 40:44-15(a). Thereafter, the certified re port and map were to be filed with the county clerk, the Secretary of State, and the municipal clerk. Ibid. Finally, the municipal clerk was to cause no tice of the ward boundaries to be published in a local newspaper within two weeks of the filing of the Commission's report. N.J.S.A. 40:44

- 16. After receiving the 2020 Census, the Commission he ld three public meetings on December 15, 2021, January 14, 20 22 , and January 22, 2022. The Commissioners also conducted several working sessio ns during that time, but the Commissioners certified that no more than three Commissioners were present at any one working session. On January 22, 2022, after listening to approximat ely three hours of public comment, the Commission voted to adopt new boundari es for the six wards and7 A- 0356

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approved a new ward map (the 2022 Ward Map). The w ard maps before and after 2022 are depicted in the two maps set forth b elow:

As these maps reflect, the City is irregularly sha ped because its boundaries are based on rivers, harbors, bays, cliffs, and adj oining municipalities. The Commission made various adjustments to the boundari es of the six wards.
Th ose adjustments particularly affected Wards A, E, a nd F. The shape of Ward F also changed from a somewhat square shape to a ja gged, sideways L-shape. On February 3, 2022, the Commissioners' certified report and 2022 Ward Map were filed with the county clerk, the City' s municipal clerk, and the8 A- 0356

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Secretary of State. Two days later, on February 5, 2022, notice of the new ward boundaries was published in a local newspaper , The Jersey Journal. Plaintiffs filed two complaints in lieu of prerogative wri ts challenging the new ward boundaries and the 2022 Ward Map. The fir st action was filed on March 7, 2022, by James Calderon, a City resident. Calderon challenged the new wards on two grounds, contending that the Commi ssion had violated (1) the OPMA because the Commission er s had met in private sessions; and (2) the MW Law because the wards, and in particular Wards A and F, wer e not compact and had broken up the Lafayette neighborhood. The second action was filed on March 21, 2022, by several community organizations and Frank E. Gilmore, the Ward F Coun cilperson (collectively, the CO plaintiffs). The CO plaintiffs contended th at in redrawing the boundaries of the wards, the Commission "disrupted and carved up long-standing neighborhoods, ignored natural geographic dividers, and even split buildings in half," and thereby "violated basic principles of fa ir representation and communities of interest" embedded in the statutory requirement that wards be "compact." The CO plaintiffs' complaint contained four counts . Count one alleged a violation of the MW Law, contending that the wards were not compact, and as9 A- 0356

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a result violat ed the equal protection provision of the New Jersey C onstitution

. Count two alleged that the Commissioners had failed to draw the wards compactly, and that failure violated the CO plainti ffs' rig ht s of free speech and association under the New Jersey Constitution. In c ount three, the CO plaintiffs alleged a violation of the OPMA, contending that th e Commission had met and made decisions on the new ward map in private worki ng sessions. Finally, i n count four, they alleged that the Commission and it s Chairperson had violated the CR Act by depriving the CO plaintiffs of their "rights to reside in . . . ward[s] that consist [] of compact territory that preserves their communit ies of interest" and their ability to elect representatives of their choice. They also alleged that the Commission had violated the CR Act by retaliati ng against Gilmore "for his campaign advocacy around affordable housing, gentri fication and displacement by removing a significant number of his supporters" from Ward F. Plaintiffs sought several forms of relief, includi ng (1) a declaration that the 2022 Ward Map and ward boundaries were invalid; (2) an order directing the Commission to redraw the wards more compactly a nd without splitting neighborhoods or communities of interest unnecessar ily; (3) declarations that the Commission violated the OPMA, the CO plaintiffs ' rights to free speech and association, and the MW Law ; (4) an order "requiring the Commission to make10 A- 0356

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sure that the process is transparent and all meeting s of the Commission are open to the public"; and (5) an order awarding plaintiff s legal fees. In response, the Commission moved under Rule 4:6 -2(e) to dismiss the complaints for failure to state valid claims. Afte r hearing oral argument, on August 25, 2022, the trial court issued two orders dismissing both complaints with prejudice. The trial court set forth its reas ons on the record. Concerning the CO plaintiffs' complaint, the trial court initially held that the complaint was filed beyond the forty-five-day t ime limit for a prerogative writs action. The court determined that the Commis sion had adopted the new ward boundaries on January 22, 2022, but the CO pla intiffs had waited over fifty days to file their complaint on March 21, 2022. Nevertheless, the court went on to address the meri ts of the CO plaintiffs' claims, as well as the claims asserted by Calderon. The court held that plaintiffs failed to adequately plead a violation of the MW La w because the court found that the 2022 Ward Map was compact. The court rejected the CO plaintiffs' equal protection claim, reasoning that the CO plain tiffs based their claim on a "common interest" rather than a protected category as required to sustain an equal protection claim. The court then held that t he CO plaintiffs' free speech11 A- 0356

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and association claims were insufficiently pled bec ause the Commission's actions did not restrict those rights. Addressing plaintiffs' OPMA claims, the court foun d that they were deficient because plaintiffs did not identify the d ates of any allegedly nonconforming meetings where the Commission took offic ial action. The court also found that the working sessions were not subject to the OPMA because there was no quorum of Commissioners present. Finally, t he trial court held that the claim that the Commission retaliated against Gilmor e in violation of the CR Act failed as a matter of law because the CO plaintiffs did not allege a violation of a substantive right. Plaintiffs now appeal from the orders dismissing t heir complaints in lieu of prerogative writs with prejudice.
II. Collectively, plaintiffs make five arguments in th ese consolidated appeals. They contend that the Commission violated (1) the M W Law; (2) their rights to equal protection; (3) their rights of freedom of sp eech and association; (4) the OPMA; and (5) their rights under the CR Act. There is also an initial iss ue concerning the timeliness of the CO plaintiffs' com plaint.12 A- 0356

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Appellate courts conduct a de novo review of an or der dismissing a complaint under Rule 4:6 -2(e). Neuwirth v. State, 476 N.J. Super. 377, 389 (App. Div. 2023). "A reviewing court must examine 'the legal sufficiency of the facts alleged on the face of the complaint,' giving the plaintiff the benefit of 'every reasonable inference of fact.'" Baskin v. P .C. Richard & Son, LLC, 246 N.J. 157, 171 (2021) (quoting Dimitrakopoulos v. Bo rrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C. , 237 N.J. 91, 107 (2019)). Courts should search the complaint thoroughly "and with liberality to as certain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if neces sary." Ibid. (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 , 746 (1989)). If, however, "the complaint states no claim that su pports relief, and discovery will not give rise to such a claim, the a ction should be dismissed." Ibid. (quoting Dimitrakopoulos, 237 N.J. at 107). Legal sufficiency "requires allegation of all the facts that the cause of actio n requires." Cornett v. Johnson & Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010 ), aff'd as modified, 211 N.J. 362 (2012). "In evaluating motions to dismiss , courts consider 'allegations in the complaint, exhibits attached to the complain t, matters of public record, and documents that form the basis of a claim.'" Ba nco Popular N. Am. v. Gandi ,13 A- 0356

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184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am ., 361 F.3d 217, 221 n.3 (3d Cir. 2004)). "If the court considers evidence b eyond the pleadings in a Rule 4:6 -2(e) motion, that motion becomes a motion for summ ary judgment, and the court applies the standard of Rule 4:46." Dimitrak opoulos, 237 N.J. at 107.
A. The Timeliness of the CO Plaintiffs' Complaint. Rule 4:69 -6(a) states that "actions in lieu of prerogative w rits must be commenced no later than '[forty-five] days after the accrual of the right to the review, hearing or relief claimed .' " Save Camden Pub. Schs. v. Camden City Bd. of Educ., 454 N.J. Super. 478, 489 (App. Div. 2 018) (alteration in original) (quoting R. 4:69 -6(a)). Where the forty-five-day mark falls on a S aturday, Sunday, or legal holiday, the period is extended un til the next business day. See
R. 1:3

- 1. Courts may extend the time "where it is manifest th at the interest of justice so requires." R. 4:69 -6(c). In short, this rule is "aimed at those who slumber on their rights." Hopewell Valley Citizens' Grp. , Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 579 (2011) (emphasis o mitted ) (quoting Schack v. Trimble, 28 N.J. 40, 49 (1958)). Rule 4:69 -6(a) does not define when actions in lieu of prero gative writs for ward commission actions accrue. The MW Law als o does not specify when the right to review an action by a ward commission a ccrues. Therefore, we look14 A- 0356

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to substantive law on when an action accrues. See Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361, 401 (App. Di v. 2008). Substantive law establishes that an action in lieu of prerogative w rits challenging an action of a municipal government accrues on the date the action is adopted. See In re Borough of Englewood Cliffs, 473 N.J. Super. 189, 2 05 (App. Div. 2022 ) (holding that the right to challenge the Borough Co uncil's approval of a settlement agreement accrued on the date the Counci l voted to approve the agreement, where no further action was required for approval). When a ward commission adjusts boundaries followin g the receipt of a federal decennial census, the commissioners are to meet, take an oath, and then "make such adjustments in ward boundaries as shall be necessary to conform them to the requirements of this act." N.J.S.A. 40 :44- 13 (c). The reafter, within thirty days, the ward commissioners shall file thei r report "setting forth and properly describing the ward boundaries fixed and d etermined." N.J.S.A. 40:44- 15(a). The certified report is then to be filed wi th the county clerk, the Secretary of State, and the municipal clerk. Ibid. These provisions support the interpretation that the Commission's actions are ad opted when the report is filed. The Commission's report was filed on February 3, 2 022. The CO plaintiffs filed their complaint in lieu of preroga tive writs on March 21, 2022.15 A- 0356

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Forty-five days from February 3, 2022, was Sunday, Ma rch 20, 2022. Thus, the filing on March 21, 2022 was timely. Moreover, bec ause the adoption of the new ward boundaries and ward map is an issue of bro ad public concern, it would have been in the interest of justice to extend the time to cons ider the CO plaintiffs' complaint in lieu of prerogative writs. Indeed, it would have been particularly appropriate in this matter to relax th e forty-five-day requirement because the complaint by Calderon was timely, and t he court was going to consider his claims on the merits. Thus, we reject the trial court's holding that the complaint filed by the CO plaintiffs was untime ly and we, accordingly, consider all the claims on their merits. B. The MW Law Claims. The MW Law "shall constitute the exclusive method whereby the bounda ries of wards, or other similar representation dist ricts, in municipalities shall be fixed and determined." N.J.S.A. 40:44-10. It sets forth three requirements for ward districts. N.J.S.A. 40:44-14 . Each ward must be (1) "compact" and (2) "contiguous," and (3) "[t]he popu lation of the most populous ward . . . shall not differ from the population of the least populous ward . . . by more than [ten percent] of the mean population of t he wards." Ibid. The third requirement is designed to maintain a roughly equal population distribution16 A- 0356

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among the wards and has the goal of protecting the one -person, one-vote principle. See Davenport v. Apportionment Comm'n, 65 N.J. 125, 129 (1974) (explaining that the goal of substantial equality o f population among legislative districts was "the overriding object of the one -[person], one-vote principle"). Initially, it is important to delineate what these appeals do not involve. There is no claim of invidious discrimination. Mor eover, plaintiffs have not alleged gerrymandering based on political party. I nstead, they have made broad allegations about the fragmentation of "communities of interest" and neighborhoods. Those allegations, however, do not support a claim that the wards were shaped for partisan advantage that "will not be tolerated." Id. at
134. Plaintiffs also do not challenge the 2022 Ward Map and the ward boundaries on the grounds that the wards are not co ntiguous. Indeed, a review of the 2022 Ward Map establishes that each ward is contigu ous because none of the wards are broken into more than one area. Instead, plaintiffs contend that the wards are not compact. The Legislature did not define "compact" in the MW Law. Moreover, there are no publishe d decisions interpreting the MW Law or its use of the word "compact." Accordingly, we look to the plain meaning of the wo rd "compact" and construe17 A- 0356

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it within the context and purpose of the entire MW Law. See State v. Thompson , 250 N.J. 556, 572 (2022). The definition of "compact" includes "having a dens e structure or parts or units closely packed or joined" and "occupying a sm all volume by reason of efficient use of space." Merriam-Webster's Collegiate Dictionary 252 (11th e d. 2020). To give meaning to this definition as appli ed to a municipal ward, we look to cases evaluating challenges to State legislative reapportionments and congressional redistricting in New Jersey. See Ste inhardt v. N.J. Redistricting Comm'n (In re Establishment of Cong. Dists.), 249 N.J. 561 (2022); D avenport , 65 N.J. 125. 1 It is fair to presume that in enacting the MW Law, the Legislature considered how State legislative and congressional districts are reapportioned and the law governing the scope of judicial review. In doing so, however, we recognize a fundamental distinction between municip al wards and State legislative or congressional districts. State legi slative and congressional districts are created by and defined in the New Jer sey Constitution. N.J. Const.

1 Plaintiffs cite to cases from other jurisdictions and urge us to consider how those courts have evaluated challenges to redistric ting plans. We find those cases to be of

limited u se in these appeals because we are construing the MW Law, a New Jersey statute.18 A- 0356

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art. IV, § 3, ¶ 1 ; N.J. Const. art. II, § 2, ¶ 1. In contrast, munici pal wards are created by and defined by the MW Law

— a statute. Our Supreme Court has long recognized that "[c]ompactness is an elusive concept" and "may be of limited utility in creating legislative districts in light of the odd configuration of our State and its munic ipalities." Davenport, 65 N.J. at 133. Moreover, in considering challenges to the State legislative and congressional reapport ion ment and redistricting plans, our Supreme Court has held that courts have a "limited" role. Id. at 135. The Court has recognized that "[p]olitics and political considerations are insepa rable from districting and
appor tionm ent." Id. at 134 (quoting Gaffney v. Cummings, 412 U.S. 735, 753 (1973)). Thus, the Court has explained:

Reapportionment is essentially a political and legislative process. The plan must be accorded a presumption of legality with judicial intervention warranted only if some positive showing of invidiou s discrimination or other constitutional deficiency i s ma de. The judicia ry is not justified in striking down a plan, otherwise valid, because a "better" one, in i ts opinion, could be drawn. [Id. at 1 35 (quoting Gaffney, 412 U.S. at 751) .] Recognizing that the C onstitution governs State legislative and congressional districts, the Court has also held th at commissions that adopt redistricting or reapportionment plans are not subj ect to the normal arbitrary,19 A- 0356

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capricious, and unreasonable standard generally use d to evaluate agency actions.
In re Establishment of C ong . Dists., 249 N.J. at 576- 77. Instead, courts are limited to determining whether the redistricting pl an is "unlawful or reflects invid ious discrimination." Id. at 574. Applying these principles to municipal wards, we hold that two rul es govern a court's limited review of a commission's a djustment of wards when there is no claim of i nvidious discrimination or partisan gerrymandering. First, the boundaries and map can only be challenged on th e basis that they violate any of the three MW Law requirements of compactness, cont iguousness, or population deviation. Challenges based on general, but undefined, concepts of "communities of interest" or "historic neighborhood s" are not viable. While communities of interest and neighborhoods are clear ly important, the Legislature did not include those considerations in the MW Law. Second, the role of a court in reviewing compactnes s is limited. A ward need not be as tight as possible, and the realities of geography will require some amount of elongation and jagged boundaries. A ward need only have a rational basis for its shape, considered within the context of the shape of the overall municipality, the other wards, and the population d eviation between the most20 A- 0356

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populous and least populous wards. The court should not consider whether there is a better or more compact configuration. Applying these rules to the 2022 Ward Map and the ward boundaries , we reverse for a very limited fact-finding. On a motion to dismiss, an d without any factual record, the trial court in these matter s simply concluded that the wards were compact. The court need ed to conduct some proceeding focused on the question of whether there was a rational basis for the Commission's configuration of the wards. That proceeding, howev er, should be limited. Given the allegations in plaintiffs' complaints, they are not entitled to discovery, and the fact -finding proceedings should be carefully restricted . The inquiry is simply to determine if the Commissioners had a rational basis for their configuration, so the court can then determine whet her the wards are compact, given the flexibility afforded by the MW Law. The trial court will have discretion to allow focused cross-examination of on e or more Commissioners, provided that examination is limited to the rational basi s for the compactness of the wards. Moreover, plaintiffs cannot challenge t he Commission's configuration by arguing that the wards do not comp ly with other models of compactness. In that regard, we expressly reject t he CO plaintiffs' attempt to use the Polsby-Popper Measure or the Reock Measure. Plaintiffs should also21 A- 0356

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not be allowed to challenge the 2022 Ward Map based on whether it breaks up communities of interest or neighborhoods. C. The CO Plaintiffs' Constitutional Claims. The CO plaintiffs allege that the Commission's fai lure to draw compact wards violated their New Jersey constitutional righ ts of equal protection, free speech, and free association. However, the CO plai ntiffs' allegations, even when give n every reasonable inference, fail to state viable constitutional claims. The principle of equal protection is derived from Ar ticle I, Paragraph 1 of the New Jersey Constitution, which states:

All persons are by nature free and independent, and ha ve certain natural and un alienable 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. See also State v. Pimentel, 461 N.J. Super. 468, 49 0 (App. Div. 2019) (recognizing that the principle of equal protection unde r the New Jersey
Const itution derives from this article). To state an equal protection claim, a claimant mus t show that the challenged governmental action does not apply "even handedly to similarly situated people." Caviglia v. Royal Tours of Am., 178 N.J. 460, 472 ( 2004) (recognizing that a governmental action is invalid on equal protection grounds22 A- 0356

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when it does not apply "evenhandedly to similarly s ituated people") ; Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985) (explaining t hat Article I, Paragraph 1 protects "against the unequal treatment of those wh o should be treated alike ") ; see also Lewis v. Harris, 188 N.J. 415, 443 (2006) (recognizing that an equal protection challenge to a governmental action must be based on the contention that the action does not apply "evenhandedly to sim ilarly situated people"). In their complaint, the CO plaintiffs allege that the Commission's failure to draw compact wards led to "the unnecessary split ting of neighborhoods and other communities of interest" into different wards , resulting in a violation of the CO plaintiffs' equal protection rights as guara nteed by the New Jersey Constitution. They point to the splitting of the L afayette neighborhood, which, according to the m , "comprises one [of] the oldest African-American communities in the State of New Jersey." As alread y pointed out, however, the CO plaintiffs acknowledge that the Commission did n ot engage in any form of invidious discrimination, including discrimination based on r ace, in redrawing the City wards. More fundamentally, the CO plaintiffs' complaint ha s not identified how any class of people was treated differently by the Commission as compared to another class of people. The CO plaintiffs allege that some residents of the City23 A- 0356

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were moved to different wards. That, however, is e xactly what the MW Law authorizes. Indeed, the CO plaintiffs are not contending that there should be no wards; rather, they are objecting to ho w the Commission adjusted the wards. Even giving the CO plaintiffs every reasonable infe rence, their complaint simply does not state a viable equal protection claim. For similar reasons, the CO plaintiffs' claims of violations of their free speech and association rights also fail. In protec ting free speech, the New Jersey Constitution declares: "Every person may freely sp eak, write and publish his [or her] sentiments on all subjects, being responsi ble for the abuse of that right. No law shall be passed to restrain or abridge the l iberty of speech or of the press." N.J. Const. art. I, ¶ 6. Addressing the right of free association, the New Jersey Constitution states: "The people have the r ight freely to assemble together, to consult for the common good, to make k nown their opinions to their representatives, and to petition for redress of gri evances." N.J. Const. art. I, ¶ 18. In their complaint, the CO plaintiffs allege that "the Commission's [2022 Ward] Map amounts to an attempt to nullify the end- product of the democratic election process." They assert that the voters in Ward F elected Gilmore as their councilperson because of his advocacy for affordable housi ng and opposition to24 A- 0356

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the City's increasing development of luxury high-ri ses. They then contend that the Commission "tore apart large blocks of voters, split[ ting ] neighborhoods that were instrumental in electing" Gilmore. They argue that the new ward map thereby infringes on their rights to free speech an d assembly by depriving them of the right to "elect the candidate of their choice." The wards created by the Commission, however, did not impact the CO plaintiffs' rights of free speech and association. The CO plaintiffs have the same free speech and association rights they had before the wards were adjusted in 2022. They are all residents of the City, and ward boundaries do not infringe on their rights of free speech and association. While purposely diluting the votes of certain identifiable groups might infringe on a constitutional right to assemble, there is no showing that the Commission e ngaged in that kind of diluting . The MW Law expressly states that when wards are redrawn, incumbent councilpersons are not removed from their elected positions . N.J.S.A. 40:44- 17. Thus, it is pure speculation as to whether Gilm ore will retain his position as councilperson for Ward F at the next election. More fundamentally, all residents of the City, including the CO plaintiffs, will continue to have the same free speech and asso ciation rights to support or oppose the re-election of Gilmore. While some resi dents who were formerly25 A- 0356

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part of Ward F may not be able to directly vote for Gilmore, they can exercise their rights of free speech and association to supp ort candidates of their choice in their new wards. In short, creating and adjusti ng wards necessitates that residents of the City will be divided into different wards. Moreov er, when wards need to be adjusted to maintain substantial populat ion equality, some residents will have to be moved to different wards. D. The OPMA Claims. Plaintiffs argue that the Commission violated the OPMA by holding unannounced private meetings. They contend that at those meetings, the Commissioners (1) "drafted proposals for various ma ps[; ]" (2) discussed considerations related to these maps; (3) used mapp ing software to compare "existin g ward boundaries with census block data[; ]" (4) discussed the extent to which each map would "impose the least amount of de mographic change to each ward" and "lowering the deviation between the most populous ward and the least populous to the lowest possi ble percentage[;]" and (5) selected a map to present to the public, thereby decid ing to exclude the presentation of the other maps they were considering from the public. Plaintiffs also assert that these private meetings "were open to all members of the Commission" an d "were attended by an effective majority."26 A- 0356

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Plaintiffs' allegations failed to state a viable O PMA violation. The Commissioners certified that all non-public working sessions involved less than a quorum of the Commissioners. Although consideratio n of those certifications effectively converted the motion to dismiss into a motion for summary judgment on the OPMA claims, the Commission was still entitl ed to a dismissal of those claims. The MW Law contemplates that ward commissioners wi ll engage in working, non-public meetings. See N.J.S.A. 40:44-1 2 (allowing the commissioners to retain and consult with a surveyor , an engineer, or "other assistan ts as shall be necessary to aid them in the discharge of their duties"). Plaintiffs should not be permitted to take discover y concerning the non-public meetings in an effort to try to support an OPMA cla im, because that discovery would invade the province of the Commissioners. Th e Commissioners' obligations were to discharge their duties under th e MW Law and adopt ward boundaries and a map in accordance with the MW Law. See N .J.S.A. 40:44- 13 , -15. The OPMA does not prohibit individual commiss ioners or a group of commissioners, constituting less than a quorum, fro m meeting with "assistants" and considering information, including alternative maps, in private meetings.27 A- 0356

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Additionally, plaintiffs cannot show that the Commission took any form al action in a non-public meeting. There is no disput e that the Commission voted to adopt new ward boundaries and a new map at the J anuary 22, 2022 public meeting. Adopting new bou nd aries and a map are the only actions required of the Commissioners under the MW Law. In short, plaintiffs ha ve not alleged , nor could they alleg e, viable OPMA claims. E. The CO Plaintiffs' CR Act Claims. The CR Act provides that "[a]ny person who has bee n deprived of . . . any substantive rights, privileges or immunities secure d by the Constitution or the laws of this State . . . by a person acting under colo r of law" may bring an action for damages. N.J.S.A. 10:6-2(c); s ee also Winberry Realty P'ship v. Borough of Rutherford, 247 N.J. 165, 183 (2021). Accordingly, plaintiffs must show (1) a substantive right conferred by a law or the C onstitution ; (2) a deprivation of that right; and (3) that the deprivation was made by a p erson acting under color of law. See Winberry Realty P'ship, 247 N.J. at 183- 84. The CO plaintiffs allege that the Commission's ado ption of the new ward boundaries and map violated their rights under the CR Act in two respects. First, they contend that the Commission infringed on their constitutional rights of equal protection, freedom of speech, and freedom of association. For the28 A- 0356

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reasons that have already been explained, those con stitutional claims fail and, therefore, they also do not support viable claims u nder the CR Act. See AmeriCare Emergency Med. Servs. v. City of Orange T wp., 463 N.J. Super. 562, 574 (App. Div. 2020) (explaining that a CR Act claim is v iable only where someone acting under color of law has deprived the plaintiff of a right or has interfered with the plaintiff's enjoyment or exerci se of a right); Hurdleston v. New Century Fin. Servs., 629 F. Supp. 2d 434, 443 ( D.N.J. 2009) (explaining that because the plaintiff had not shown deprivatio n of a substantive right, the defendants were entitled to summary judgment on the plaintiff's CR Act claim). The CO plaintiffs also allege that the Commission retaliated against Gilmore in adopting the new ward boundaries. They alleged that the retaliation took the form of moving certain residents who had v oted for Gilmore out of Ward F and removing federal opportunity zones and p roposed or approved development projects from Ward F. As already discu ssed, this claim is speculative and does not rise to the level of a sub stantive right, privilege, or immunity secured by the Constitution or the laws of New Jersey. Accordingly, this claim was also properly dismissed.29 A- 0356

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F. Conclusion. In summary, we affirm the dismissal of plaintiffs ' constitutional claims and their claims under the OPMA and the CR Act. We reverse and remand the claims und er the MW Law for a focused and limited proceeding on whether the Commission had a rational basis for the ward bounda ries and map it adopted. That rational basis may well be set forth in the Co mmission's report

. If so, the Commissioners can certify that rational basis, and the trial court can then determine if that is sufficient. On the current re cord, plaintiffs are not entitled to discovery from or depositions of the Commissione rs. Affirmed in part, reversed in part, and remanded i n accordance with this opinion. We do not retain jurisdiction.