NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0227-21
ASHISH KUMAR, MICHAEL DIAFERIA, JEFFREY REDRUP, APPROVED FOR PUBLICATION OZZY GUZMAN, and August 23, 2022 MICHAEL CLARE APPELLATE DIVISION ("EMS COMMITTEE OF PETITIONERS"),
Plaintiffs-Respondents/ Cross-Appellants,
and
KAMUELA TILLMAN, MINDY GOLDSTEIN, JULIET PASTRAS, LAURA LEIBOWITZ, and STACI BERGER ("TAPE COMMITTEE OF PETITIONER"), and PISCATAWAY PROGRESSIVE DEMOCRATIC ORGANIZATION,
v.
PISCATAWAY TOWNSHIP COUNCIL,
Defendant-Appellant/ Cross-Respondent, and
NANCY PINKIN, in her capacity as Middlesex County Clerk, and MELISSA SEADER, in her capacity as Piscataway Municipal Clerk,1
Defendants. ______________________________
Argued June 7, 2022 – Decided August 23, 2022
Before Judges Currier, DeAlmeida, and Smith (Judge Smith dissenting).
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5017-21.
Richard J. Mirra argued the cause for appellant/cross- respondent (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Richard J. Mirra, of counsel and on the briefs).
Renee Steinhagen argued the cause for respondents/cross-appellants (New Jersey Appleseed Public Interest Law Center, Inc., attorneys; Renee Steinhagen, on the brief).
The opinion of the court was delivered by
CURRIER, J.A.D.
1 Plaintiffs withdrew their claim against the municipal clerk prior to oral argument on the order to show cause.
A-0227-21 2 In this matter, we consider whether a municipality may approve a
resolution to place non-binding public opinion questions before the electorate
when initiative petitions concerning the identical issues are on the same ballot.
We conclude the municipality was not authorized under N.J.S.A. 19:37 -1 to
pass the resolutions regarding the public opinion questions because the
electorate was considering the same issues on the ballot in their vote on the
initiative questions. Therefore, we affirm the trial court's order which found
the resolutions were invalid.
We also consider the trial court's order that denied plaintiffs' application
for an award of attorney's fees under the New Jersey Civil Rights Act (CRA),
N.J.S.A. 10:6-1 to -2. Because defendants' actions of passing the unauthorized
resolutions deprived plaintiffs of their substantive right to initiative, we
reverse the court's order denying plaintiffs a counsel fee award.
I.
In July 2021, the EMS Committee of Petitioners filed the "Improving
Township EMS Services Initiative Petition" with the Piscataway Township
(Township) municipal clerk. The petition was a proposed draft ordinance
addressing the lack of a unified emergency medical services system in the
Township by creating a Division of Emergency Medical Services to coordinate
services. A prior report, commissioned by the Township in 2012, had
A-0227-21 3 concluded there was no unified system in the municipality and the current
structure was not "delivering consistent services at adequate levels to give
[Piscataway residents] a level of EMS response set out in industry standards."
The petition included both a question to be placed on the November 2021
general election ballot and an interpretative statement. The question asked
voters to determine whether a Division of Emergency Medical Services should
be established.
A second group––the TAPE Committee of Petitioners––filed the
"Transparency, Access and Public Engagement Initiative Petition" with the
clerk. This petition was a proposed draft ordinance that would require the
Township to record, broadcast, and/or stream the public portions of the
Council, Planning and Zoning Board meetings on the Township's public access
channel.2 It included both a question to be placed on the November 2021
general election ballot and an interpretative statement.
During the August 10, 2021 Township Council meeting, the Township
clerk, in accordance with N.J.S.A. 40:69A-187, filed certifications of
sufficiency for both the EMS and TAPE Committees' petitions. In addition, as
2 The petition also required the Township "to post all notices, agendas, recordings made under this [o]rdinance, and approved minutes of all Township meetings that are subject to the Open Public Meetings Act on the Township website."
A-0227-21 4 required under N.J.S.A. 40:69A-190, the proposed ordinances were placed on
the agenda for a first reading and public hearing. The Council did not address
or discuss the petitions or the interpretive statements and, it did not propose
any amendments to the petitions. In fact, the Council did not take any action
as to either petition.
Later, in the same meeting, the Council passed two resolutions on its
consent agenda regarding public questions to be included on the November
2021 general election ballot. Resolution #21-306 authorized a public question
that read, "Should the Township of Piscataway create a new Division of
Emergency Medical Services when the cost of doing so is estimated to increase
Piscataway property taxes by approximately $643,683.27 or will result in a
reduction in current services to Piscataway residents."
Resolution #21-307 authorized a public question that read, "Should the
Township of Piscataway broadcast its Township Council, Planning Board and
Zoning Board meetings on PCTV and online when the cost of doing so is
estimated to increase Piscataway property taxes by approximately $575,100.63
or will result in a reduction in current services to Piscataway residents." After
the meeting, the Township provided plaintiffs with copies of the resolutions
and the estimate of costs after plaintiffs requested the documents under the
Open Public Records Act, N.J.S.A. 47:1A-1 to -13.
A-0227-21 5 Pursuant to N.J.S.A. 40:69A-191, after the passage of twenty days and
lack of action by the Council on the petitions, the Township clerk submitted
the petitions and interpretative statements to the Middlesex County Clerk to be
placed on the November 2021 general election ballot. The non-binding public
questions were also submitted for the same ballot.
Thereafter, plaintiffs presented a verified complaint and order to show
cause seeking injunctive relief. Plaintiffs alleged defendants' actions
contravened N.J.S.A. 19:37-1 and violated
their statutory rights of initiative by placing non- binding referenda addressing effectively the same policy proposals as [p]laintiffs' binding referenda on the November 2, 2021 General Election ballot, in a blatant attempt not to gauge the sentiment of the voters, but instead to sway them to reject [p]laintiffs' initiated ordinances.
Plaintiffs further alleged defendants violated N.J.S.A. 40:69A-184 to -204
because the Council failed "to perform its duty to adopt in substantially the
same form, or formally reject, [p]laintiffs' proposed ordinances . . . and
instead, . . . approve[d] two resolutions placing non-binding referenda on the
ballot . . . ." Lastly, plaintiffs contended defendants' actions violated the CRA,
entitling them to an award of attorney's fees and costs.
After hearing the parties' arguments, the court issued a lengthy oral
decision. The court found the resolutions and the accompanying non -binding
A-0227-21 6 public questions presented "the same or similar . . . 'question or policy'
presented by the plaintiffs' petitions and initiated ordinances." Therefore, the
Township Council had no authority to pass the resolutions and the non-binding
public questions were "void ab initio as a matter of law."
The court noted the Council considered the initiatives and passed the
resolutions at the same meeting with the intention of placing all four items on
the general election ballot. The court found this conduct was "desi gned to
scare the electorate against the binding initiative effort," and that the Council's
resolutions "were conceived, designed, and adopted as a pretext and a
subterfuge to sabotage and ultimately defeat the plaintiffs' petitions." The
court stated it was up to the voters to decide, without improper influence by
the Council, whether the proposed ordinances should become law. It also
noted that the Township could submit a proposition for the repeal or
amendment of the ordinances approved by the voters.
In turning to plaintiffs' application for counsel fees under the CRA, the
court noted that "the denial of the right of initiative . . . [would] constitute a
violation of the New Jersey Civil Rights Act, and thus would warrant an award
of attorney's fees, under N.J.S.A. 10:6-2(c)." However, the court found that
plaintiffs "were not denied their right of petition" because "their petitions and
the proposed . . . ordinances were certified, and were transmitted . . . to the
A-0227-21 7 County Clerk." Therefore, plaintiffs' "rights were and are preserved and
protected . . . by the initiated ordinances . . . as well as [the] injunctive relief
. . . granted by . . . the [c]ourt in this action."
II.
On appeal, defendants contend the trial court erred in enjoining
defendants from placing the non-binding public questions on the ballot. In a
cross-appeal, plaintiffs assert the court erred in denying their request for
counsel fees under the CRA.
Our review is de novo. Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995) ("[I]nterpretation of the law and the
consequences that flow from established facts are not entitled to any special
deference.").
In our review of the issues, we initially considered whether the matter
was moot as the November 2021 election took place and the voters passed both
ordinances.3 However, because plaintiffs still contend they are entitled to
attorney's fees as the prevailing party on their civil rights claim, the matter is
not moot. In order to determine whether plaintiffs were a prevailing party, we
must find the right to initiative is a substantive right guaranteed by the
Faulkner Act, N.J.S.A. 40:69A-1 to -210, and that the Township deprived
3 The Township has subsequently implemented both ordinances.
A-0227-21 8 plaintiffs of that right. Therefore, we must consider both issues. See
Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010)
(stating an issue determined to be moot is nonjusticiable and as a result, courts
will not normally render a decision on the issue).
A.
We begin then with a discussion of the applicable statutes. The Optional
Municipal Charter Law, commonly known as the Faulkner Act, "was adopted
in order to encourage public participation in municipal affairs in the face of
normal apathy and lethargy in such matters." Sparta v. Spillane, 125 N.J.
Super. 519, 523 (App. Div. 1973). The initiative provision should b e "liberally
construed." Id. at 523.
In forming its government under the Faulkner Act, the Township
accorded its residents the rights of initiative and referendum. The right of
initiative is delineated under N.J.S.A. 40:69A-184, which states: "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." While the proper
exercise of the right of initiative is binding on the local government, it is not
without limitation. City of Ocean City v. Somerville, 403 N.J. Super. 345, 357
(App. Div. 2008). "[O]rdinances passed by initiative are subject to amendment
A-0227-21 9 or repeal in the same manner that ordinances passed by the governing body of
a municipality are." Id. at 357-58 (citing N.J.S.A. 40:48-1).
The second statute at issue here, N.J.S.A. 19:37-1, permits a local
governing body to place non-binding public opinion questions before the
electorate on a ballot. The statute provides:
When the governing body of any municipality . . . desires to ascertain the sentiment of the legal voters of the municipality . . . 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 . . . 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 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 [eighty-one] days previous to the election.
[N.J.S.A. 19:37-1 (emphasis added).]
The Township has never disputed the validity of the respective initiative
petitions. The petitions were presented with the required number of
signatories and the municipal clerk certified their sufficiency.
The sole issue then is whether the Township was authorized under
N.J.S.A. 19:37-1 to place non-binding public questions concerning the
identical issue on the same general election ballot as the petitions. A-0227-21 10 In interpreting a statute, courts must discern and effectuate the
Legislature's intent. Meehan v. Antonellis, 226 N.J. 216, 232 (2016) (quoting
Shelton v. Restaurant, Inc., 214 N.J. 419, 428-29 (2013)). The best indicator
of that intent is the statutory language itself. DiProspero v. Penn, 183 N.J.
477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)).
Therefore, we begin with the words of the statute and ascribe to them their
ordinary meaning. Mason v. City of Hoboken, 196 N.J. 51, 68 (2008).
N.J.S.A. 19:37-1 provides "a method for municipalities and counties to
determine their voters' views on proposed action within their governmental
power, i.e., their views on local governmental issues." Borough of Bogota v.
Donovan, 388 N.J. Super. 248, 252 (App. Div. 2006) (quoting N.J. State AFL-
CIO v. Bergen Cnty. Bd. of Chosen Freeholders, 121 N.J. 255, 258-59 (1990)).
As our Supreme Court has further stated, "N.J.S.A. 19:37-1 authorizes a
governing body to ascertain public sentiment before that body acts. It provides
a method to gauge public opinion, which the governing body may consider or
ignore in determining an appropriate course of action." Great Atl. & Pac. Tea
Co. v. Borough of Point Pleasant, 137 N.J. 136, 145 (1994). Contrary to our
dissenting colleague's statement, we do not rely on "three words" of a statute
but instead consider the entirety of N.J.S.A. 19:37-1 and the interpreting case
law.
A-0227-21 11 Importantly, the governing body may only approve a non-binding public
question if "no other statute" can "ascertain the sentiment of the . . . voters of
the municipality." N.J.S.A. 19:37-1. The Township cannot meet that proviso.
The voters were already being asked to consider the creation of an EMS
department and the recording/broadcasting of Township meetings through their
votes on the petitions presented on the ballot in the general election. Those
petitions were brought before the voters under the procedure established in
N.J.S.A. 40:69A-184. Therefore, the public's sentiment regarding the issues
set forth in the non-binding public questions would be ascertained during the
general election by their votes on the petitions.
Plaintiffs properly presented the issues to the electorate though their use
of the initiative process established in another statute, N.J.S.A. 40:69A-184.
Therefore, the Township had no authority under N.J.S.A.19:37-1 to place non-
binding questions on the same ballot regarding the identical issues.
The Township asserts that the questions sought public sentiment beyond
the initiative petitions because they included information about estimated costs
to the taxpayer regarding the petitions. In viewing the statutory provisions,
"not in isolation but 'in relation to other constituent parts so that a sensible
meaning may be given to the whole of the legislative scheme,'" we see no
intent in the legislative framework to support this argument. Tumpson v.
A-0227-21 12 Farina, 218 N.J. 450, 467 (2014) (quoting Wilson ex rel. Manzano v. City of
Jersey City, 209 N.J. 558, 572 (2012)).
After the petition was submitted to the Council, it had several options.
The Council could pass the ordinance in the form requested. See N.J.S.A.
40:69A-191. The Council could also reject the ordinance or pass an
alternative version of the ordinance on the same subject. And the Council
could amend the interpretative statement to include its estimated costs. See
Gormley v. Lan, 88 N.J. 26, 37 (1981). Instead, the Council took no action on
the petitions; but accepted them as they read.
However, at the same meeting, the Council passed two resolutions
authorizing the non-binding public questions. These questions were sent to the
County Clerk to be included on the same election ballot as the petitions. This
action was not sanctioned under the Faulkner Act. N.J.S.A. 19:37-1 does not
permit the Township to directly address the binding initiative petitions through
public opinion questions because the petitions, placed on the ballot through an
approved procedure, are already gauging the public sentiment on the issues.
The questions in the Township's resolutions were not objectively
balanced questions posed to the voters. To the contrary, they only highlighted
potential costs to taxpayers if the initiatives were passed. The questions did
not include any positive effect of the petitions. To permit questions phrased in
A-0227-21 13 the manner as the Township did here, would completely undermine the
purpose of the Faulkner Act and permit a governing body to defeat an
initiative petition by only highlighting its negative effects, whether or not
accurate, to the voters.
Moreover, the inclusion of both the petitions and the non-binding
questions on the same ballot would cause confusion to a voter and have the
potential to render contradictory results. If the voters passed the EMS
Committee petition, they were approving an ordinance to create a new
Division of Emergency Medical Services. However, on the same ballot, the
voters could also vote "no" to the non-binding question on the same issue, due
to a fear of higher taxes. But the ordinance was passed, rendering the non-
binding question of no import. It would be illogical and confusing to include
the petition and the non-binding question on the same ballot.
Because there was no statutory authority for the Township's actions in
passing the resolutions approving the non-binding public questions, the trial
court properly found the questions invalid and prohibited their inclusion on the
November 2021 general election ballot.
B.
We turn to plaintiffs' contentions regarding the court's denial of their
requests for attorney's fees under the CRA, N.J.S.A. 10:6-2(f).
A-0227-21 14 The CRA "is intended to provide the citizens of New Jersey with a State
remedy for deprivation of or interference with the civil rights of an
individual." Tumpson, 218 N.J. at 473 (emphasis in original) (citation
omitted). In order to prevail on a claim under the CRA, a plaintiff must show
that: (1) they have "been deprived of any substantive due process or equal
protection rights, privileges or immunities secured by the Constitution or laws
of the United States, or any substantive rights, privileges or immunities
secured by the Constitution or laws of this State," or their "exercise or
enjoyment of those substantive rights, privileges or immunities has been
interfered with or attempted to be interfered with," (2) "by threats, intimidation
or coercion"; and (3) "by a person acting under color of law." N.J.S.A. 10:6-
2(c). The Act "does not define substantive right, nor is the term self -
explanatory." Tumpson, 218 N.J. at 473. A prevailing party under the Act is
entitled to reasonable attorney's fees and costs. Id. at 472 (quoting N.J.S.A.
10:6-2(f)).
In Tumpson, the Court held that the city clerk in the Faulkner Act
municipality violated the plaintiffs' rights of referendum in refusing to accept
for filing a petition for referendum. 218 N.J. at 457. The Court found the
refusal to accept the petition constituted a deprivation of a substantial right,
entitling plaintiffs to an award of attorney's fees under the CRA. Ibid.
A-0227-21 15 Although Tumpson determined the denial of a referendum right violated
the CRA, its analysis applies equally to initiative petitions. See Fuhrman v.
Mailander, 466 N.J. Super. 572, 598 (App. Div. 2021). The Faulkner Act
conferred the initiative petition right on plaintiffs and the Township's
electorate. The Township attempted to deprive plaintiffs' assertion of their
rights through the unauthorized use of non-binding public opinion questions.
In order to achieve an unfettered consideration of their petitions, plaintiffs
were compelled to seek a remedy through the court system. Because the
Township's actions gave rise to a cause of action, the right of initiative is
substantive in nature. See Tumpson, 218 N.J. at 478; Harz v. Borough of
Spring Lake, 234 N.J. 317, 334 (2018).
In considering plaintiffs' application for attorney's fees, the trial court
found that plaintiffs' substantive civil rights were not violated because the
Township submitted their petitions to the county clerk for placement on the
ballot and the court issued the requested injunctive relief blocking the
inclusion of the non-binding public opinion questions on the same ballot.
However, this conclusion was a misapprehension of the law established
under Tumpson. There, the Court considered the meaning of "deprivation" in
the context of a deprivation of a substantive right. The Court looked to the
definitions in Black's Law Dictionary and Webster's II New College
A-0227-21 16 Dictionary, where "deprive" or "deprivation" was defined as "an act of taking
away," "a withholding of something" 4 and "to keep from having or enjoying." 5
The Court found that "the [c]lerk's refusal to file their referendum petition took
away, withheld, and kept plaintiffs from enjoying their right of referendum."
Id. at 481. And, although the trial court later provided a judicial remedy in
compelling the clerk to comply with the Faulkner Act and process the
referendum petition, the Court held that did "not alter the nature of the [c]lerk's
earlier act, which deprived plaintiffs of a statutory right." Ibid. "Judicial relief
does not extinguish the earlier deprivation." Id. at 482.
Although the facts here differ from Tumpson, we nevertheless reach the
same result regarding the issue of the deprivation of a substantive right. The
Township's clerk did not violate the Faulkner Act. But the Township, through
its Council, did violate the Act as discussed. And in doing so, the Township
deprived plaintiffs of their right to petition when it included unauthorized non -
binding questions on the same ballot as the petitions, preventing plaintiffs
from having their petitions fully and fairly considered. Like Tumpson,
plaintiffs were compelled to seek judicial intervention.
4 Black's Law Dictionary 507 (9th ed. 2009). 5 Webster's II New College Dictionary 305 (2001).
A-0227-21 17 In issuing an injunction and preventing the inclusion of the non-binding
questions on the ballot, the trial court altered the legal relationship between the
parties. The court's order "modif[ied] the defendant[s'] behavior in a way that
directly benefit[ted] . . . plaintiff[s]." Id. at 483 (quoting Farrar v. Hobby, 506
U.S. 103, 111-12 (1992)). After the court granted an injunction, defendants
could not place their non-binding questions on the ballot, and plaintiffs freely
enjoyed their right of initiative. Put another way, but for the trial court's
intervention, the non-binding questions would have been included on the ballot
with the initiative petitions. Therefore, defendants' actions deprived plaintiffs
of their right to initiative. See DeSanctis v. Borough of Belmar, 455 N.J.
Super. 316, 334 (App. Div. 2018).
In enacting the CRA, and specifically N.J.S.A. 10:6-2(f), the Legislature
implicitly acknowledged the difficulty a citizen might have in retaining
competent counsel to litigate and preserve their substantive right to initiative.
As the Tumpson court stated, it was
unlikely that average citizens looking to participate in the democratic process could afford to litigate to enforce their substantive right of referendum . . . . With the attorney's fees provision of N.J.S.A. 10:6- 2(f), citizens thwarted by official action denying them the benefit of a substantive statutory right have the ability to attract competent counsel.
[218 N.J. at 480.]
A-0227-21 18 Therefore, plaintiffs are entitled to an award of attorney's fees and costs under
N.J.S.A. 10:6-2(f).
We affirm the portion of the court's order declaring the resolutions
invalid and prohibiting the Council and county clerk from placing the non -
binding question on the November 2021 general election ballot. We reverse
and vacate the portion of the order denying plaintiffs' application for attorney's
fees under N.J.S.A. 10:6-2(f). We remand the matter to the trial court for
consideration of plaintiffs' fee application.
Affirmed in part, reversed, and vacated in part, and remanded to the
court for further proceedings in accordance with this opinion. We do not
retain jurisdiction.
A-0227-21 19 SMITH, J.A.D., dissenting.
I respectfully disagree with the majority, and I would interpret N.J.S.A.
19:37-1 differently. In my view, the majority's interpretation of the statute
improperly constrains, if not eliminates entirely, a municipal governing body's
ability to place non-binding public opinion questions before their voters in a
manner inconsistent with what our Legislature intended. I submit the
Legislature intended a reading of N.J.S.A. 19:37-1 which permits it to work
harmoniously with the voters' right to pass legislation by initiative under
N.J.S.A. 40:69A-184.
Next, I find no evidence in the record to support the conclusion that
defendants' non-binding resolution was identical to plaintiffs' initiative or
somehow "misleading" to voters. Given that I would have interpreted N.J.S.A.
19:37-1 differently, I would not find plaintiffs a prevailing party, nor award
counsel fees under the New Jersey Civil Rights Act. 6
Our statutory construction jurisprudence provides a reliable road map.
We review matters of statutory interpretation de novo. Verry v. Franklin Fire
Dist. No. 1, 230 N.J. 285, 294 (2017). Our ultimate "task in statutory
interpretation is to determine and effectuate the Legislature's intent." Bosland
6 N.J.S.A. 10:6–2(f). v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009). Courts "look first to the
plain language of the statute, seeking further guidance only to the extent that
the Legislature's intent cannot be derived from the words that it has chosen."
McGovern v. Rutgers, 211 N.J. 94, 108 (2012) (quoting Bosland, 197 N.J. at
553).
However, our review "is not limited to the words in a challenged
provision." State v. Twiggs, 233 N.J. 513, 532 (2018). A court "'can also
draw inferences based on the statute's overall structure and composition,' and
may consider 'the entire legislative scheme of which [the statute] is a part.'"
Ibid. (alteration in original) (citations omitted). "We do not view [statutory]
words and phrases in isolation but rather in their proper context and in
relationship to other parts of [the] statute, so that meaning can be given to the
whole of [the] enactment." Id. at 533 (alterations in original) (quoting State v.
Rangel, 213 N.J. 500, 509 (2013)).
Furthermore, "[t]he Legislature is presumed to be familiar with its own
enactments, with judicial declarations relating to them, and to have passed or
preserved cognate laws with the intention that they be construed to serve a
useful and consistent purpose." State v. Federanko, 26 N.J. 119, 129 (1958)
(citing Appeal of N.Y. State Realty & Terminal Co., 21 N.J. 90, 98-100
(1956)).
A-0227-21 2 We review the operative language of N.J.S.A. 19:37-1 first. It is a
method for municipalities to determine their voters' views on certain matters,
see Borough of Bogota, 388 N.J. Super. at 252, and vests a municipal
governing body with the ability "to ascertain the sentiment of the legal voters
of the municipality . . . upon any question or policy pertaining to the
government or internal affairs thereof . . . ." N.J.S.A. 19:37-1. As such, a
non-binding resolution of the municipal body may appear on the next general
election ballot pursuant to N.J.S.A. 19:37-1. Ballot questions under this
statute are generally used to "gauge public opinion" before the municipality
acts, and the municipality "may consider or ignore" such opinion "in
determining an appropriate course of action." Great Atl. & Pac. Tea Co., 137
N.J. at 145.
N.J.S.A. 40:69A-184 gives voters the power to "propose any ordinance
and . . . adopt or reject the same at the polls . . . ." If passed, the ordinances
brought forward by the initiative process are binding on local government.
Somerville, 403 N.J. Super. at 357.
The majority discerns the Legislature's intent by zeroing in on the plain
language of the statute. They focus on N.J.S.A. 19:37-1's words "no other
statute," and construe these three words expansively. In the majority's
interpretation, these words do all of the work.
A-0227-21 3 I submit that reading this phrase so broadly raises concerns. The
majority's interpretation creates a mutual exclusivity between the two statutes
which suggests that as long as N.J.S.A. 40:69A-184 is in effect, N.J.S.A.
19:37-1 has no legal meaning. If we extend the majority's interpretation to its
logical conclusion and read the phrase "no other statute by which the sentiment
can be ascertained" to bar a municipality from adding a ballot question if a
separate statute exists that could ascertain this information, it becomes
impossible for municipalities to add ballot questions under N.J.S.A. 19:37 -1
due to the mere existence of any other statute which may achieve the same
objective. Consider for a moment, circumstances in which voters are unaware
of a pending issue, and that the municipality wants to bring the issue to their
attention to ascertain their sentiment. The governing body would be precluded
from doing so under the majority's reading of N.J.S.A. 19:37-1. I posit that it
is unlikely that the Legislature envisioned such a restrictive interpretation of
this phrase.
The majority's solution to this concern is narrowing the limiting phrase,
"there is no other statute by which the sentiment can be ascertained[,]" to the
facts, where the voters have already acted under N.J.S.A. 40:69A-184 and the
voters' proposed ordinance is allegedly identical to the non-binding question
the municipality seeks to raise. Limiting the holding to the facts of the case is
A-0227-21 4 a sound way to frame the majority's holding, however, this approach makes a
cudgel out of N.J.S.A. 40:69A-184, takes away from municipalities a power
granted by the Legislature, and may well serve as a doorway to future
litigation, perhaps starting with these very parties. However, I respectfully
submit that there is a different interpretation of the statute that permits
N.J.S.A. 19:37-1 and N.J.S.A. 40:69A-184 to work in harmony.
I would not limit our review to three "words in a challenged provision."
Twiggs, 233 N.J. at 532. An interpretation more consistent with our case law
on N.J.S.A. 19:37-1, can "draw inferences based on the statute's overall
structure and composition." Ibid.
The phrase "upon any question or policy pertaining to the government or
internal affairs thereof" immediately precedes the three critical words.
N.J.S.A. 19:37-1. This phrase focuses a municipality's acts under the statute
on matters within its sphere of influence, its own "government or internal
affairs." Conversely stated, this clause prevents a municipality from
ascertaining public sentiment on matters outside its sphere of influence. It
follows, then, that "no other statute" likely refers to statutes within the
municipality's purview, not the entire legislative code.
Viewing this constituent part of N.J.S.A. 19:37-1 in relation to the entire
statute, a more "sensible meaning" emerges. See Tumpson, 218 N.J. at 467. If
A-0227-21 5 there is no other statute under which a municipality can gauge public opinion
on matters within its purview, the municipality can use its legislatively granted
powers under N.J.S.A. 19:37-1 to add a non-binding question to the next ballot
in order to ascertain this sentiment. This approach allows for taking words and
phrases "in their proper context," and gives meaning "to the whole of [the]
enactment." Twiggs, 233 N.J. at 533 (alterations in original) (quoting Rangel,
213 N.J. at 509). Under this construction a more plausible legislative purpose
emerges: to ensure that a municipal governing body does not use its power to
encroach upon the internal affairs of the State's other legislative creations.
Our courts have interpreted the "no other statute" language to limit
municipalities' power to pass non-binding resolutions when those
municipalities infringed upon other State-created municipal corporations.7
Examples include boards of education and public utilities. The Legislature had
an opportunity to amend the statute's language as recently as 2011. They
declined to do so and elected to preserve it as is. See Federanko, 26 N.J. at
129.
7 See, e.g., Town of Harrison Bd. of Educ. v. Netchert, 439 N.J. Super. 164, 179-85 (App. Div. 2014); Finkel v. Twp. Comm. of Twp. of Hopewell, 434 N.J. Super. 403, 318-26 (App. Div. 2013); Borough of Bogota, 388 N.J. Super. at 251-54; Great Atl. & Pac. Tea Co., 137 N.J. at 143-52.
A-0227-21 6 Interpreting the law this way allows both binding voter initiatives and
non-binding municipal ballot questions to co-exist, even when the subject
matter of the ballot actions is similar. I submit that doing so is not "illogical
and confusing," as the majority suggests. In this scenario, voters are simply
asked to resolve competing policy arguments, something they are entrusted to
do every election.
The majority dismisses the Township's argument that the addition of cost
estimates distinguishes the Township's assessment of public interest from that
of the voter initiatives. The non-binding resolutions covered the identical
subject matter as the ordinances, but the resolutions supplied the voters
additional and different information, including cost estimates. The record
shows nothing to support the trial court's conclusion that defendants'
resolutions were misleading in relation to the initiatives. The municipal cost
estimates were exactly what they purported to be, estimates. The reality that
tax increases or budget trade-offs will accompany the adoption of ordinances
calling for more staff, a new communication system, and construction and
maintenance of a municipal website should come as a surprise to no one.
I also respectfully disagree with the majority's conclusion that placing
the non-binding resolutions on the ballot in this matter can lead to inconsistent
results. As suggested above, both public questions can logically co-exist on
A-0227-21 7 the same ballot. That is because one is binding, while the other is non-binding.
In this case, one would assess the public sentiment in adding services, while
the other would gauge the public's appetite for spending taxpayer dollars in
doing so.
Concerning counsel fees, I agree with the majority that plaintiffs have a
substantive right which is protected under the CRA. However, I would have
found for defendants and plaintiffs would not have prevailed. On this record,
even with plaintiffs' success in keeping defendants' resolutions off the
November ballot, I do not find plaintiffs a prevailing party. Defendants did
not impede plaintiffs in any way, as their initiatives were placed on the
November ballot without incident. Plaintiffs had no rights under N.J.S.A.
40:69A-184 which were impacted.
Plaintiffs went on the offensive with their action for injunctive relief,
effectively "clearing the playing field" and using the courts to ensure that their
legislation was placed before the voters without any information about what
their proposals could cost taxpayers. While there are factual scenarios that
may warrant award of counsel fees under the CRA to protect plaintiffs' right to
pass legislation through initiative, a preemptive legal strike to suppress
opposition at the ballot box is not one of them.
A-0227-21 8 I respectfully dissent and would interpret N.J.S.A. 19:37-1 in a manner
that allows it to "serve a useful and constructive purpose." Federanko, 26 N.J.
at 129.
I would reverse the order of the trial court and enter judgment for
defendants.
A-0227-21 9