NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0908-13T2
ADAM M. FINKEL, CATHERINE M. KAVANAUGH and JAMES J. WULF, APPROVED FOR PUBLICATION
Plaintiffs-Appellants, December 30, 2013
v. APPELLATE DIVISION
TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HOPEWELL, and PAULA SOLLAMI-COVELLO, in her capacity as CLERK OF THE COUNTY OF MERCER,
Defendants-Respondents. __________________________________
Argued December 17, 2013 - Decided December 30, 2013
Before Judges Messano, Sabatino, and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2115-13.
Adam M. Finkel, appellant, argued the cause pro se.
Catherine M. Kavanaugh, appellant pro se, and James J. Wulf, appellant pro se, join in the brief of Adam M. Finkel, appellant pro se.
Steven P. Goodell argued the cause for respondent Township Committee of the Township of Hopewell (Herbert, Van Ness, Cayci & Goodell, attorneys; Mr. Goodell and Rachel U. Doobrajh, of counsel and on the brief). Joseph P. Blaney, Assistant County Counsel, argued the cause for respondent Paula Sollami-Covello (Arthur R. Sypek, Jr., Mercer County Counsel, attorney; Mr. Blaney and Mr. Sypek, on the brief).
Robert T. Lougy, Assistant Attorney General, argued the cause for amicus curiae Attorney General of the State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; George N. Cohen, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
SABATINO, J.A.D.
This appeal involves the ambiguous interrelationship of
several referendum provisions within the New Jersey election
statutes. Specifically, we consider whether a proposed question
on a non-binding local referendum may be placed on a ballot when
the municipality has failed to submit the proposal to the county
clerk within 81 days before an election as required by N.J.S.A.
19:37-1, but has submitted the proposal within the 65-day
deadline separately set forth in N.J.S.A. 19:37-2. As part of
our analysis, we also consider whether a governing body's non-
compliance with the 81-day deadline in N.J.S.A. 19:37-1
conflicts with the local citizens' interests, as protected by
N.J.S.A. 19:37-1.1, in having sufficient time to react to a
referendum that has been proposed to be placed on the ballot.
For the reasons that follow, we conclude that a governing
body's ballot submission must meet the separate deadlines of
2 A-0908-13T2 both N.J.S.A. 19:37-1 and N.J.S.A. 19:37-2. Because the 81-day
deadline of N.J.S.A. 19:37-1 was not met here, we declare the
referendum at issue untimely and thus invalid. Consequently, we
reverse the trial court's order holding to the contrary.
Because the election has occurred and the governing body has
already acted on the policy question posed by the referendum, we
issue no other relief beyond our declaratory ruling.
I.
The case arises out of the Law Division's order denying
plaintiffs' request to declare invalid a non-binding referendum
question placed on the Hopewell Township ballot for the November
5, 2013 General Election. The referendum sought the input of
Township voters on restricting the speed limit of a section of
Route 579 in the Township in front of the Bear Tavern Elementary
School. That portion of Route 579, also known as Bear Tavern
Road, is currently owned and maintained by Mercer County.
Plaintiffs Adam M. Finkel, Catherine M. Kavanaugh, and
James J. Wulf are Township residents. They have advocated for
the Township to acquire that section of Route 579 from the
County in order to reduce the speed limit by the elementary
school.1
1 Without getting into all of the details here, evidently the County took the position that it would not agree to a further (continued)
3 A-0908-13T2 On August 27, 2013, the Township's governing body submitted
a proposed non-binding referendum to the Mercer County Clerk for
inclusion on the General Election ballot for November 5, 2013.
The purpose of the referendum was to gauge local voter sentiment
about the potential acquisition of the roadway segment from the
County.
The referendum question, Resolution #13-248, read as
follows:
Shall the Township of Hopewell take over ownership, including maintenance, of a one and one-half mile section of Bear Tavern Road (County Route 579) between Jacobs Creek Road and Washington Crossing Road (County Route 546), which is currently owned and maintained by the County of Mercer, for the purpose of lowering the speed limit from 30 mph to 25 mph, within the one-quarter mile school zone in front of Bear Tavern Elementary School during the approximately 180 day school year for 12 hours on school days for an estimated average yearly cost for the first 15 years of $67,000 per year?
The accompanying interpretive statement2 read as follows:
(continued) reduction of the speed limit unless the Township purchased and agreed to maintain the pertinent stretch of Route 579. 2 For consistency, we shall use the term "interpretive statement," although case law has previously used both "interpretive statement" and "interpretative statement" interchangeably. See, e.g., Bd. of Chosen Freeholders v. State, 159 N.J. 565, 582 (1999) (using "interpretative statement"); State v. Biegenwald, 126 N.J. 1, 95 (1991) (same). But see Cambria v. Soaries, 169 N.J. 1 (2000) (using "interpretive (continued)
4 A-0908-13T2 For 50 years, the speed limit on Bear Tavern Road (County Route 579) in front of Bear Tavern Elementary School was 50 mph. In 2012, at the request of Hopewell Township, the County of Mercer lowered the speed limit between Jacobs Creek Road and Washington Crossing Road (County Route 546) to 45 mph and, for the one-quarter mile in front of Bear Tavern Elementary School, to 30 mph.
In 2013, Mercer County declined the Township’s request to lower the speed limit in the school zone to 25 mph, but proposed the following: 1) the County would reconsider lowering the speed limit in the school zone after one year following the Jacobs Creek Bridge being re-opened to traffic, which is anticipated to occur in 2014; 2) the County would upgrade the current school zone warning flashers with driver feedback signs; 3) the County would enable local officials to operate these devices to better coincide with the school schedule.
If Hopewell Township takes over ownership of the roadway, Mercer County would no longer be responsible for any further costs associated with the roadway, including replacement of the road surface every 15 years and maintenance, such as road repair, signs and winter salting and plowing. Either way, Mercer County would retain ownership of Jacobs Creek Bridge and the intersection of Washington Crossing Road (County Route 546).
A "yes" vote would tell the Township to take over the roadway.
(continued) statement"); State v. Trump Hotels & Casino Resorts, 160 N.J. 505, 546 (1999) (same).
5 A-0908-13T2 A "no" vote would tell the Township do not take over the roadway.
After receiving the Township's submission, the County Clerk
was advised of plaintiffs' objection to the inclusion of the
referendum question on the November 2013 General Election
ballot. Nevertheless, the County Clerk decided under the
circumstances to proceed with printing those ballots, including
the referendum and interpretive statement.
Plaintiffs maintained that the governing body's submission
of the referendum question to the Mercer County Clerk was
untimely under N.J.S.A. 19:37-1, as it was submitted only 70
days before the election. Moreover, they contended that the
interpretive statement accompanying the referendum question was
misleading, and that the statement was unfairly worded to sway
voters to oppose it.
N.J.S.A. 19:37-1, which has been amended several times
since its original enactment, currently reads:
When the governing body of any municipality or of any county desires to ascertain the sentiment of the legal voters of the municipality or county upon any question or policy pertaining to the government or internal affairs thereof, and there is no other statute by which the sentiment can be ascertained by the submission of such question to a vote of the electors in the municipality or county at any election to be held therein, the governing body may adopt at any regular meeting an ordinance or a resolution requesting the clerk of the
6 A-0908-13T2 county to print upon the official ballots to be used at the next ensuing general election a certain proposition to be formulated and expressed in the ordinance or resolution in concise form. Such request shall be filed with the clerk of the county not later than 81 days previous to the election.
[N.J.S.A. 19:37-1 (emphasis added).]
It is undisputed that the Township's submission of the ballot
question to the County Clerk occurred only 70 days before the
election and therefore did not meet this specified 81-day
deadline.
Defendants, the Township Committee and the Mercer County
Clerk, contended that the failure to adhere to the 81-day
deadline was inconsequential here because a certified copy of
the resolution was submitted to the County Clerk within the 65-
day time frame prescribed by N.J.S.A. 19:37-2. That statutory
provision, which likewise has been amended multiple times
(albeit not always at the same time as N.J.S.A. 19:37-1),
presently reads as follows:
If a copy of the ordinance or resolution certified by the clerk or secretary of the governing body of any such municipality or county is delivered to the county clerk not less than 65 days before any such general election, he shall cause it to be printed on each sample ballot and official ballot to be printed for or used in such municipality or county, as the case may be, at the next ensuing general election.
[N.J.S.A. 19:37-2 (emphasis added).]
7 A-0908-13T2 Defendants maintained that compliance with N.J.S.A. 19:37-2
obviated any non-compliance with N.J.S.A. 19:37-1. In response,
plaintiffs asserted that such an interpretation rendered the 81-
day deadline in N.J.S.A. 19:37-1 meaningless.
On October 2, 2013, plaintiffs, then represented by
counsel,3 filed a complaint and order to show cause in the trial
court against defendants, and moved for a preliminary
injunction. By that point, however, the ballots had already
been printed.
After hearing the parties' arguments, the trial judge
issued an order and written opinion on October 21, 2013 denying
plaintiffs' request for injunctive relief. The judge determined
that plaintiffs had failed to satisfy the criteria for
injunctive relief under Crowe v. De Gioia, 90 N.J. 126, 132-34
(1982). The judge found that (1) plaintiffs had failed to show
that they would suffer irreparable harm, particularly given the
non-binding nature of the referendum, (2) they would not likely
succeed on the merits of their case, and (3) the Township bore a
disproportionately greater burden of hardship should the
injunction be granted, as, among other things, it would deprive
3 Plaintiffs are self-represented on appeal. None of them is an attorney, although we note that one of them is a member of a law school faculty.
8 A-0908-13T2 Township Committee members of the "input and views of a broader
range of Township residents."
On the point of plaintiffs' probability of success, the
judge concluded that the Township's non-compliance with the 81-
day submission deadline in N.J.S.A. 19:37-1 appeared to be of no
moment, because the Township had complied with the separate 65-
day deadline in N.J.S.A. 19:37-2. The judge found that "[u]nder
these circumstances . . . the County Clerk appropriately
determined to allow the question to remain on the ballot. This
is consistent with the case law most recently reaffirmed by the
New Jersey Supreme Court in [N.J.] Democratic Party v. Samson,
175 N.J. 178 (2002), that election laws are to be liberally
construed to allow New Jersey [voters] to exercise their
franchise and make a choice." The judge added that he
"decline[d] to invalidate the ability of Hopewell Township
voters to express their views on this important public question
solely on technical grounds, where the election officials have
determined that the issue should be placed on the ballot."
The judge also briefly addressed the propriety of the
interpretive statement. He concluded that "both the [ballot]
question and statement, taken together, provide Hopewell
Township voters with the essential background and facts to make
an informed decision." The judge added that the chosen wording
9 A-0908-13T2 was "consistent with the requirements under Gormley v. Lan, 88
N.J. 26 (1981), in that the interpretive statement gets to the
heart of the matter as understood by those who are knowledgeable
about it." Hence, the judge concluded that plaintiffs had not
shown a likelihood of success on the merits of their claims, and
he rejected their request for a preliminary injunction.
Plaintiffs promptly filed an emergent application for
relief with this court. Recognizing that ballots for the
election had already been printed, plaintiffs did not seek that
they be changed or reprinted at that late hour. They instead
confined their prayer for emergent relief to a request that the
votes cast on the question not be tabulated.4 Defendants opposed
the emergent application, urging that the court not interfere
with an ongoing election process. At our request, the Attorney
General was invited to participate in the emergent application,
but he declined.
Upon considering the emergent application, a two-judge
panel of this court issued an order on October 29, 2013, seven
days before the election, which denied plaintiffs' request for
injunctive relief. We concluded that plaintiffs had failed to
show that allowing the ballots to be counted would cause
4 Plaintiffs specifically limited their emergent arguments to the timeliness of the referendum, and did not seek review at that time of the wording of the interpretive statement.
10 A-0908-13T2 irreparable harm.5 We cautioned, however, that our decision to
allow the vote and the count to go forward would be "subject to
this court's ultimate plenary decision on the legal validity of
the referendum procedure."
Our emergent order did indicate, however, that plaintiffs
had preliminarily shown a probability of success on the merits
of their argument that the referendum was invalid because of the
Township's failure to comply with the 81-day submission deadline
of N.J.S.A. 19:37-1. We amplified that preliminary finding with
a tentative analysis of the text and legislative origins of the
statutory provisions, explaining why we were inclined to
disagree with the trial judge's analysis. Given the limited and
expedited nature of the parties' emergent submissions, we
reserved a final determination on the issues of statutory
interpretation for further briefing and plenary consideration
after the election. We also specifically requested the Attorney
General to participate in the post-election briefing, in
recognition of his roles as the sole legal advisor to State
government, N.J.S.A. 52:17A-4(e), and in the enforcement of New
Jersey election laws. We established a briefing schedule and a
peremptory oral argument date of December 17.
5 We also questioned whether, as a practical matter, it was even feasible to prevent the ballots cast at voting machines from being tallied automatically.
11 A-0908-13T2 Plaintiffs did not seek emergent relief from the Supreme
Court. Hence, the election went forward on November 5, with the
Township voters casting ballots on the referendum and guided by
the accompanying interpretive statement. According to the
official tally, 4,237 residents of the Township voted "no" on
the referendum question, while 1,534 "yes" voters supported it.
Several weeks later, plaintiffs filed a motion with this
court advising that the Township Committee imminently expected
to decide at its next meeting on November 25 whether the
Township ought to take over the ownership and maintenance of the
subject portion of Route 579.6 Plaintiffs requested us to enjoin
the Township Committee from deciding the substance of the matter
until this appeal was decided. By that point, the Attorney
General had filed an amicus letter-brief with this court,
requesting that we dismiss plaintiffs' appeal as moot because
the election was over.
In a three-judge order issued on November 25, 2013, we
denied plaintiffs' application to restrain the Township
Committee from acting. Our order recited in relevant part:
6 At oral argument before us, counsel for the Township and the County acknowledged that, as of November 25, there was no specific deadline looming on the road acquisition issue, or any pending post-election change in composition of the governing body, which made it necessary or urgent for the Township to act on the roadway matter before the oral argument in this appeal scheduled for December 17.
12 A-0908-13T2 Plaintiff[s'] application for injunctive relief against the Township is denied. Regardless of the referendum's validity or invalidity under the applicable statutes, it was non-binding in nature, being only "an expression of sentiment by the voters, to be followed or disregarded by the governing body in its discretion." N.J.S.A. 19:37-4. Consequently, we have no reason to interfere with the governing body's apparent plan to proceed with decision-making on the subject matter of the referendum, despite the pendency of this appeal.
Our order further instructed the parties to be prepared to
address, in addition to the merits of the statutory issues,
whether the issues of statutory construction were "'capable of
repetition, yet evading review,'" in light of the short
timelines set forth in N.J.S.A. 19:37-1 and -2. Roe v. Wade,
410 U.S. 113, 125, 93 S. Ct. 705, 713, 35 L. Ed. 2d 147, 161
(1973) (quoting S. Pac. Terminal Co. v. Interstate Commerce
Comm'n, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310,
316 (1911)). Again, plaintiffs did not seek emergent relief
from the Supreme Court.
At the subsequent Township Committee meeting on the evening
of November 25,7 four of the five Committee members voted against
the Township taking ownership of the subject portion of Route
579 from Mercer County. This decision was consistent with the
7 We presume that the parties and counsel had received a copy of our order issued earlier that day.
13 A-0908-13T2 apparent will of the majority of the voters who had cast ballots
on the non-binding referendum.
The Township and the County Clerk now argue that because
the election is over and the Township's governing body had
rejected the roadway acquisition, there is no reason for this
court to consider this matter any further. Defendants join in
the Attorney General's request that we dismiss the appeal as
moot, and that we leave unresolved the issues of statutory
interpretation presented under N.J.S.A. 19:37-1 and -2.
Plaintiffs, however, urge that we reject the claims of
mootness and reach the merits of the statutory issues of
timeliness. They also now seek review of the trial court's
decision sustaining the wording of the interpretive statement.
Plaintiffs request that we declare the referendum invalid. They
also ask that we go further and order that the matter be
presented again to the Township voters in the next election with
a differently-worded referendum and interpretive statement.
Finally, plaintiffs seek recovery from defendants of the counsel
fees they expended in the trial court.
II.
A.
We first address the question of mootness. Despite the
fact that the election is over and the governing body has
14 A-0908-13T2 rejected the roadway acquisition, we decline the invitation to
dismiss the appeal for several reasons.
The courts of our State are not bound by the strict "case
or controversy" requirement that Article III, Section 2, of the
United States Constitution imposes on federal courts. See
Salorio v. Glaser, 82 N.J. 482, 490-91, appeal dismissed and
cert. den., 449 U.S. 804, 101 S. Ct. 49, 66 L. Ed. 2d 7 (1980);
Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58
N.J. 98, 107-08 (1971). Even so, our courts often decline to
review legal questions that have become academic prior to
judicial scrutiny, out of reluctance to render a decision in the
abstract on such moot issues and a related desire to conserve
judicial resources. See, e.g., Oxfeld v. N.J. State Bd. of
Educ., 68 N.J. 301, 303-04 (1975); Sente v. Mayor & Mun. Council
of Clifton, 66 N.J. 204, 205 (1974); Handabaka v. Div. of
Consumer Affairs, 167 N.J. Super. 12, 14 (App. Div. 1979).
From time to time our courts have exercised the discretion
to decide an otherwise moot case that presents issues of
significant public importance, or which stem from a controversy
"capable of repetition, yet evading review" because of the short
duration of any single plaintiff's interest. In re Conroy, 190
N.J. Super. 453, 459 (App. Div. 1983) (citations omitted), rev'd
on other grounds, 98 N.J. 321 (1985); see also Roe v. Wade,
15 A-0908-13T2 supra, 410 U.S. at 125, 93 S. Ct. at 713, 35 L. Ed. 2d at 161.
We will typically do so when the matter evading review poses a
significant public question or affects a significant public
interest. See, e.g., Guttenberg Sav. & Loan Ass'n v. Rivera, 85
N.J. 617, 622-23 (1981); Dunellen Bd. of Educ. v. Dunellen Educ.
Ass'n, 64 N.J. 17, 22 (1973); John F. Kennedy Mem'l Hosp. v.
Heston, 58 N.J. 576, 579 (1971); E. Brunswick Twp. Educ. Bd. v.
E. Brunswick Twp. Council, 48 N.J. 94, 109 (1966).
The appeal before us presents a significant public question
and affects a matter of clear public interest. Objectively and
realistically considered, the matter is also very capable of
repetition but evading review. The public question involves the
proper interpretation of the election laws that have been
enacted by our Legislature. Those election laws affect all 21
counties and the more than 500 municipalities in New Jersey, as
well as the millions of voters who reside in our State.
Although the referenda presented to the voters under the
provisions in N.J.S.A. 19:37-1 and -2 are non-binding, such
propositions nonetheless involve electoral processes that are at
the core of our democracy. We do not minimize the issues and
interests here as mere technical niceties that are purely of
academic concern to political junkies and political scientists.
16 A-0908-13T2 Instead, the issues involve the important fundamentals of
carrying out a proper election.
The specific questions posed here, concerning how the
deadlines set forth in N.J.S.A. 19:37-1 and -2 are to be
sensibly harmonized and administered, are also of a kind
"capable of repetition, yet evading review." That is because of
the tight deadlines involved and the inherent non-binding nature
of the referenda. For example, where, as here, a governing body
has missed the 81-day submission deadline under N.J.S.A. 19:37-1
and instead waits until or before the 65-day deadline set forth
in N.J.S.A. 19:37-2 to submit the proposed referendum to the
county clerk, there is precious little time for concerned
citizens to discover the problem, to mount a challenge in court,
and to litigate the case to a successful conclusion before
reaching the 50-day deadline for finalizing the ballots for the
printers. See N.J.S.A. 19:14-1.
If the matter takes longer than that to litigate, the
challengers will inevitably be told by the defendants that it is
too late to grant them any relief. They are also apt to be told
that their concerns do not matter because the referendum is non-
binding in any case, such that the governing body does not have
to pay attention to the citizens' vote on it.
17 A-0908-13T2 Such a laissez-faire attitude must be rejected. If it were
to prevail, our courts would rarely have reason to hear cases
involving non-binding referenda and the compliance of those
propositions with the election laws. To the contrary, there are
several reported cases where our courts have ruled on legal
issues implicated by non-binding referenda. See, e.g., State v.
Bergen Cnty. Bd. of Chosen Freeholders, 121 N.J. 255 (1990)
(considering the propriety of a referendum question under
N.J.S.A. 19:37-1 that sought voter approval to take legal
action); Bd. of Chosen Freeholders v. Szaferman, 117 N.J. 94
(1989) (considering the merits of the appellants' case, which
sought a declaratory judgment as to whether certain activities
qualified as "government or internal affairs," as required under
N.J.S.A. 19:37-1); Borough of Bogota v. Donovan, 388 N.J. Super.
248 (App. Div. 2006) (holding the particular referendum question
under N.J.S.A. 19:37-1 to be improper).
As we show in Part II(B), infra, the provisions within
N.J.S.A. 19:37-1 and -2 and the related provision within
N.J.S.A. 19:37-1.1 have a murky interrelationship and lineage.
Defendants and the Attorney General have acknowledged that the
statutes on their face are confusing and difficult to harmonize.
Hence, the judiciary can provide a useful function in attempting
18 A-0908-13T2 to clarify for the future what the statutes mean, and how they
relate to one another.
A suitable means for attaining such clarity is through a
declaratory judgment. See N.J.S.A. 2A:16-50 to -62. The
remedial purpose of the Declaratory Judgment Act is "to settle
and afford relief from uncertainty and insecurity with respect
to rights, status and other legal relations." N.J.S.A. 2A:16-
51. "The Act merely broadens the rationale of remedies long
cognizable in equity, such as those 'to settle doubts about the
construction of a will . . . ; or . . . to quiet title, or a
bill of peace.'" N.J. Turnpike Auth. v. Parsons, 3 N.J. 235,
239-40 (1949) (quoting In re Van Syckle, 118 N.J.L. 578, 580 (E.
& A. 1937)). To serve these ends, the Act provides that "[a]ll
courts of record in this [S]tate shall . . . have power to
declare rights, status and other legal relations," N.J.S.A.
2A:16-52, and particularly to determine "any question of
construction or validity arising under . . . [a] statute,"
N.J.S.A. 2A:16-53.
To be sure, the remedy of a declaratory judgment is
"circumscribed by the salutary qualification that the
jurisdiction of the courts may not be invoked in the absence of
an actual controversy." Parsons, supra, 3 N.J. at 240. Here,
such an ongoing controversy persists, even though the voters
19 A-0908-13T2 have voted and the Township officials have decided, at least for
the time being, that they do not want to acquire the roadway.
Despite their lack of success at the polls and in town hall,
plaintiffs have not abandoned their cause. They expeditiously
sought and obtained a ruling on the legal issues before the
election, and they now want our plenary appellate review of that
ruling to determine whether it was sound.
We believe that it is eminently in the interests of justice
to complete that process of judicial review, having gained the
benefit of the additional briefing and the thoughtful oral
advocacy of the parties and counsel. We therefore decline to
dismiss the appeal as moot.
B.
As we have stated, the pivotal issue before us concerns the
interplay between the 81-day submission deadline currently
expressed in N.J.S.A. 19:37-1 and the 65-day deadline in
N.J.S.A. 19:37-2. The issue, in essence, is whether the 81-day
deadline can be ignored as long as the 65-day deadline is met.
Although these statutes have been mentioned at times in reported
cases, the precise question before us has yet to be resolved.
In undertaking the statutory analysis, several well-
established principles guide us. "The Legislature's intent is
the paramount goal when interpreting a statute and, generally,
20 A-0908-13T2 the best indicator of that intent is the statutory language."
DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v.
Bracigliano, 177 N.J. 250, 280 (2003)); Klumb v. Bd. of Educ. of
Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 23
(2009) ("When interpreting a statute, our main objective is to
further the Legislature's intent.").
Words contained within the statute should be given their
plain meanings and "read in context with related provisions so
as to give sense to the legislation as a whole." DiProspero,
supra, 183 N.J. at 492; see also N.J.S.A. 1:1–1 (stating that a
"statute is to be given its plain meaning, unless inconsistent
with the manifest intent of the [L]egislature or unless another
or different meaning is expressly indicated"); Soto v.
Scaringelli, 189 N.J. 558, 569 (2007). In cases where varying
interpretations of the plain language in the statute are
plausible, the court should look to judicial interpretation,
rules of construction, or extrinsic matters. Bubis v. Kassin,
184 N.J. 612, 626 (2005); see also Bergen Commercial Bank v.
Sisler, 157 N.J. 188, 202 (1999).
Moreover, when reviewing two separate but related statutes,
"the goal is to harmonize the statutes in light of their
purposes," Am. Fire & Cas. Co. v. N.J. Div. of Taxation, 189
N.J. 65, 79-80 (2006), to give effect to the Legislature's
21 A-0908-13T2 intent as evidenced by its "language[,] . . . the policy behind
it, concepts of reasonableness and legislative history," Johnson
Mach. Co. v. Manville Sales Corp., 248 N.J. Super. 285, 303-04
(App. Div. 1991) (citing Monmouth Cnty. v. Wissell, 68 N.J. 35
(1975)). Therefore, a reviewing court should assume that the
Legislature did not use "any unnecessary or meaningless
language," Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413,
418-19 (2009), and should instead "try to give effect to every
word of [a] statute . . . [rather than] construe [a] statute to
render part of it superfluous," Med. Soc'y of N.J. v. N.J. Dep't
of Law & Pub. Safety, Div. of Consumer Affairs, 120 N.J. 18, 26-
27 (1990) (citations omitted). "We must presume that every word
in a statute has meaning and is not mere surplusage, and
therefore we must give those words effect and not render them a
nullity." In re Attorney General's "Directive on Exit Polling:
Media & Non-Partisan Public Interest Groups", 200 N.J. 283, 297-
98 (2009).
Our courts previously considered aspects of N.J.S.A. 19:37-
1 in Camden County Board of Chosen Freeholders v. Camden County
Clerk, 193 N.J. Super. 100 (Law Div.), aff'd, 193 N.J. Super.
111 (App. Div. 1983). In that case, the trial court declared
untimely a non-binding referendum that the freeholders had
submitted to the county clerk 48 days before a general election.
22 A-0908-13T2 Id. at 108-09. At the time, the applicable provision in
N.J.S.A. 19:37-1 had prescribed that the referendum must be
filed with the county clerk within 60 days of the election.
Ibid. Because of the untimeliness, the trial court declared the
referendum invalid. Ibid. The court rejected the freeholders'
argument that the deadline in N.J.S.A. 19:37-1 could be
judicially relaxed, noting that the statute used the term
"shall," which commonly signifies a mandatory construction. Id.
at 109 (noting that a "permissive construction [of N.J.S.A.
19:37-1] would defeat the legislative mandate"). On further
review, we summarily affirmed, expressly adopting the trial
court's reasoning to declare the referendum invalid "because the
60-day filing requirement of N.J.S.A. 19:37-1 was not met."
Camden Freeholders, supra, 193 N.J. Super. at 112.
Here, defendants suggest that the Camden Freeholders
opinions are not of significance, as those cases did not address
an argument that a timely submission under N.J.S.A. 19:37-2
cured any untimeliness under N.J.S.A. 19:37-1. As of the time
that the Camden Freeholders cases were decided in 1983, the
deadline in N.J.S.A. 19:37-2 (then 60 days) happened to be
coextensive with the deadline in N.J.S.A. 19:37-1 (also then 60
days). Defense counsel argue that this means that the
freeholders' resolution was improper, implicitly under N.J.S.A.
23 A-0908-13T2 19:37-2 as well as under N.J.S.A. 19:37-1, because it failed to
meet both submission deadlines.
When the statutes were amended in 1985 after the 1983
Camden Freeholders litigation, the Legislature increased the
time frame in N.J.S.A. 19:37-1 from 60 days to 74 days, while
the time frame in N.J.S.A. 19:37-2 remained at 60 days.
Thereafter, when the statutes were most recently amended again
in 2011, the time frame in N.J.S.A. 19:37-1 was increased from
74 days to 81 days, while the time frame in N.J.S.A. 19:37-2 was
increased from 60 days to 65 days.
We further note that historically, even prior to 1983, the
deadlines in the two provisions have sometimes been coextensive,
and other times different. Indeed, when the statutes were
apparently first enacted in 1920, the antecedent to N.J.S.A.
19:37-1 did not specify a deadline,8 while the related antecedent
to N.J.S.A. 19:37-2 specified a 30-day deadline.9
Our review of the legislative history has identified no
explicit reasons for this uneven pattern of deadline changes.
8 The Legislature amended N.J.S.A. 19:37-1 in 1942 to provide 40 days; in 1967 to provide 60 days; in 1985 to provide 74 days; and most recently in 2011 to provide 81 days. 9 The Legislature amended N.J.S.A. 19:37-2 in 1947 (curiously, not 1942) to provide for 40 days; in 1971 (curiously, not 1967) to provide 60 days; and most recently in 2011 to provide for 65 days. There was no companion amendment to N.J.S.A. 19:37-2 in 1985, when the time frame in N.J.S.A. 19:37-1 was increased.
24 A-0908-13T2 Even so, we must ultimately consider the statutes as they are
currently worded.
As we have already noted, "[i]t is a cardinal rule of
statutory construction that full effect should be given, if
possible, to every word of a statute. We cannot assume that the
Legislature used meaningless language." Gabin v. Skyline Cabana
Club, Inc., 54 N.J. 550, 555 (1969) (citations omitted); see
also McGann v. Clerk of Jersey City, 167 N.J. 311, 321 (2001).
If, as defendants essentially argue, a governing body can bypass
the 81-day deadline in N.J.S.A. 19:37-1 by simply providing the
county clerk with a certified resolution under N.J.S.A. 19:37-2
within that separate provision's 65-day deadline, the deadline
in the former becomes superfluous. That cannot be so.
Although the underlying legislative intent has not been
expressed in the clearest manner, the present wording of
N.J.S.A. 19:37-1 and N.J.S.A. 19:37-2 most logically appears to
provide for a two-step process: first, the governing body's
"request" under subsection 1, either through the adoption of a
resolution or an ordinance, to include a referendum on the
ballot, followed by the submission under subsection 2 of a
certified resolution containing the ballot question.
In between those two events, a citizen's petition under
N.J.S.A. 19:37-1.1 may be presented. That provision in
25 A-0908-13T2 subsection 1.1, which was originally enacted in 1967, currently
reads as follows:
Whenever a governing body of a municipality has adopted an ordinance or resolution pursuant to section 19:37-1 of the Revised Statutes, upon the presentation to the governing body of such municipality of a petition signed by 10% or more of the voters registered and qualified to vote at the last general election in such municipality, requesting the governing body of such municipality to ascertain the sentiment of the legal voters of the municipality upon any question or policy pertaining to the government or internal affairs thereof that is reasonably related to any proposition formulated and expressed in such ordinance or resolution, such governing body of the municipality shall thereupon adopt at its next regular meeting[10] following the presentation of such petition a resolution requesting the clerk of the county to print upon the official ballots to be used at the next ensuing general election a certain proposition as formulated and expressed in the petition. Such request shall be filed with the clerk of the county not later than the 67th day previous to the election.
[(Emphasis added).]
Notably, the Legislative Statement that accompanied
Assembly Bill No. 840, which later became L. 1967, c. 101 and
the original version of N.J.S.A. 19:37-1.1, stated the
following:
10 We make no comment on whether the time frame in N.J.S.A. 19:37-1.1 can feasibly accommodate consideration at the governing body's "next regular meeting."
26 A-0908-13T2 At present the election law makes no provision for nonbinding referendum at the request of citizens of a municipality. This bill will correct the omission by providing a means by which citizens of a municipality may compel a governing body to submit to public referendum questions alternate or related to those proposed for nonbinding referendum by the governing body. The bill also affords adequate time for such citizen action following the adoption of such a resolution or ordinance by the municipality.
Since its enactment in 1967, N.J.S.A. 19:37-1.1 has
consistently provided for a time interval of at least two weeks
between the governing body's passage of an ordinance or
referendum proposing a non-binding referendum under N.J.S.A.
19:37-1, and the deadline for ten percent of the local voters to
present and obtain the governing body's approval of a petition
advocating an alternative referendum text. During that
interval, concerned members of the public, having been formally
apprised by the resolution or ordinance that a referendum is
looming, can undertake steps to gather signatures on a petition
seeking a revised or competing approach. N.J.S.A. 19:37-1.1.
Even without pursuing such a petition, voters made aware of the
referendum proposal might choose to lobby their local
27 A-0908-13T2 representatives to either withdraw or alter the proposal before
it goes on the ballot.11
The 81-day deadline of N.J.S.A. 19:37-1 therefore serves an
important notice function, whether it triggers a responsive
petition under N.J.S.A. 19:37-1.1 or simply informal local
dialogue before the referendum goes forward. See Borough of
Eatontown v. Danskin, 121 N.J. Super. 68, 76 (Law Div. 1972)
(discussing the interplay of N.J.S.A. 19:37-1 and N.J.S.A.
19:37-1.1 in further detail, and explaining the two-step
process).12 The Legislature's stated objective under N.J.S.A.
11 Defendants argue that we should not consider the impact of N.J.S.A. 19:37-1.1 because plaintiffs in this case did not present a petition to the Township after they learned of the proposed referendum. Whether or not that occurred here is unimportant to our endeavor to construe the related statutes as a whole. It is also worth noting that the proposed referendum in this case was not issued until the 70th day before the election. By that point, eleven days of the minimum fourteen- day interval between the 81-day deadline of N.J.S.A. 19:37-1 and the 67-day deadline of N.J.S.A. 19:37-1.1 had already been used up. That left potential challengers only three scant remaining days to gather the necessary signatures, obtain the governing body's assent at its next regular meeting, and file the alternative resolution with the county clerk. 12 In Danskin, the court upheld a county clerk's refusal to place on the ballot a non-binding resolution that had been issued too late by the municipality's governing body, after the then- applicable deadline in N.J.S.A. 19:37-1 had already expired. Danskin, supra, 121 N.J. Super. at 78. The proposed resolution had been generated after a petition supporting the ballot measure had been submitted by local voters under N.J.S.A. 19:37- 1.1. Id. at 71-73. The court declined to allow the untimely item to be placed on the ballot, rejecting the municipality's (continued)
28 A-0908-13T2 19:37-1.1 to provide "adequate time for . . . citizen action
following the adoption of . . . a resolution or ordinance by the
municipality" proposing a non-binding referendum would be
squelched if a town simply could skip the 81-day deadline and
wait until the 65-day submission date provided for under
N.J.S.A. 19:37-2.
In fact, under the current statutory timetable, the 67-day
deadline for a citizens' petition under N.J.S.A. 19:37-1.1
clearly precedes the 65-day deadline for submission of a
governing body's proposed referendum under N.J.S.A. 19:37-2.
Although there appears to be no express legislative statement on
this aspect, it stands to reason that the current two-day gap
between the 67th and 65th days has been designed to allow for at
least a brief period for the referendum language advocated in a
citizens' petition to potentially displace the text of the
proposed referendum initially crafted by the governing body.
This also supports our interpretation that the deadlines within
the present statutory scheme must all be scrupulously honored.
(continued) claim of "substantial compliance." Id. at 74-77. Upon examining the legislative history of the provisions at issue, the court decided that the deadline expressed in N.J.S.A. 19:37- 1 was mandatory, and had to be strictly enforced. Id. at 77-78. The same kind of strict enforcement is warranted in this case.
29 A-0908-13T2 We do not find the enforcement of the deadline in N.J.S.A.
19:37-1 would unduly "deprive voters of their franchise or . . .
render an election void for technical reasons." Kilmurray v.
Gilfert, 10 N.J. 435, 440 (1952). As our foregoing discussion
of the interplay of N.J.S.A. 19:37-1 and N.J.S.A. 19:37-1.1
showed, adherence to the 81-day deadline actually protects the
citizenry and promotes the opportunity for voters to respond
effectively to a proposed referendum.
The Attorney General suggests that, if we deem it prudent
to reach the merits, we should construe the deadline in N.J.S.A.
19:37-1 as regulating only municipalities, while the deadline in
N.J.S.A. 19:37-2 regulates solely the county clerks. With all
due respect, we fail to see how that suggestion solves the
problem before us. No matter who is the relevant governmental
"actor" within each provision, the critical question remains the
same: is a referendum valid when it has not been submitted in
compliance with the 81-day deadline in N.J.S.A. 19:37-1? We are
satisfied that the most logical answer to that question is no.
If, for some reason, the Legislature disagrees with our
construction, it can revise the statutes, as it has many times
in the past.
For these many reasons, we reverse the trial court's
decision and declare that the referendum was untimely under
30 A-0908-13T2 N.J.S.A. 19:37-1 and therefore invalid. Having made that
declaration of invalidity, there is no reason for us to reach
plaintiffs' separate claim of invalidity based upon the language
of the interpretive statement.
C.
We perceive no reason to go beyond a declaration of
invalidity as a remedy in this case. We decline to order a
prospective injunction or any other extraordinary measure. The
election is over, the governing body has made its decision about
the road, and there is no purpose in doing more in this opinion
than to clarify what the statutes mean and to apply them
faithfully to the facts before us. There is no basis to award
plaintiffs counsel fees under Title 19, or otherwise. Cf.
N.J.S.A. 19:31-29(d) (permitting reasonable attorney fees and
costs upon violations of specific provisions contained within
the subsection, inapplicable here, related to voter
registration); N.J.S.A. 19:44A-22.1 (permitting fees and costs
in cases where the court determines that applications for
injunctive relief in certain violations of campaign contribution
laws, also inapplicable here, are frivolous).
There is also no need to penalize or excoriate defendants,
as the record contains no competent proof that they missed or
misapplied the 81-day deadline because of some illicit scheme to
31 A-0908-13T2 evade the election laws. We recognize that, until this appeal
was decided, the relationship between the statutory deadlines
was unclear. The absence of clarifying precedent until today
could easily have contributed to that uncertainty.
We are mindful that a declaratory ruling may be perceived
by plaintiffs to be a Pyrrhic victory, as they may well have
hoped for a more ambitious remedy. Even so, their legal
position about the referendum's untimeliness has been
vindicated, and that is no small achievement.
Whether the speed limit in front of this elementary school
is ever further reduced is a topic well beyond the scope of this
lawsuit. We leave any future discussion or action on that
subject to the arena of local politics and public discourse,
having discharged our limited but essential function of judicial
review and statutory construction.
Reversed.
32 A-0908-13T2