NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0870-13T3 COMMITTEE OF PETITIONERS FOR THE REPEAL OF ORDINANCE NUMBER 522 (2013) OF THE BOROUGH OF WEST WILDWOOD, APPROVED FOR PUBLICATION
Plaintiff-Respondent, May 15, 2014
v. APPELLATE DIVISION
DONNA L. FREDERICK, ACTING MUNICIPAL CLERK OF THE BOROUGH OF WEST WILDWOOD, and THE BOROUGH OF WEST WILDWOOD,
Defendants-Appellants. _______________________________
Argued March 19, 2014 - Decided May 15, 2014
Before Judges Sapp-Peterson, Lihotz and Maven.1
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-338-13.
Andrew J. Cafiero argued the cause for appellants (Cafiero and Balliette, attorneys; Mr. Cafiero and William J. Kaufmann, on the brief).
Paul J. Baldini argued the cause for respondent.
The opinion of the court was delivered by
LIHOTZ, J.A.D.
1 Judge Maven did not participate in oral argument. She joins the opinion with counsel's consent. R. 2:13-2(b) In May 2013, defendant the Borough of West Wildwood
(Borough) passed an ordinance authorizing the issuance of bonds
to finance various capital improvements. Following publication
of the ordinance, plaintiff, the Committee of Petitioners for
the Repeal of Ordinance No. 522 (2013) of the Borough of West
Wildwood, sought repeal of the ordinance via referendum.
Petitioning Borough voters, plaintiff procured sixty-two
signatures and submitted the petition to defendant Donna L.
Frederick, Acting Municipal Clerk of the Borough. Frederick
rejected the petition, identifying specific notarial defects and
explaining plaintiff failed to comply with the applicable
statute, which mandated names and addresses of five committee
members be affixed to the petition when circulated. Plaintiff
resubmitted the petition after correcting the noted
deficiencies; however, Frederick again returned the petition
stating the corrections were insufficient to cure the defects.
Plaintiff filed a complaint in lieu of prerogative writs,
demanding presentation of the referendum to voters in the
November 2013 election. Following a hearing, Judge Julio L.
Mendez entered judgment directing the Borough to place the
question challenging the ordinance on the 2013 general election
ballot. The Borough's request to stay the order was granted.
On appeal, Frederick and the Borough (collectively,
defendants) challenge the Law Division's consideration of the
2 A-0870-13T3 plaintiff's complaint, arguing the protest was untimely.
Alternatively, defendants challenge the judge's findings on two
issues: first, that plaintiff was not required to affix the
names and addresses of five members on the petition prior to its
circulation; and second, that Frederick's rejection of the
petition on the basis of notarial errors was arbitrary and
capricious. We are not persuaded and affirm concluding a voter
protest of a bond ordinance is governed by the procedures set
forth in the Home Rule Act N.J.S.A. 40:49-27, which does not
require listing the Committee of Petitioners found in the
referendum provisions governing ordinance challenges, other than
those for capital improvement indebtedness, in a municipality
formed under the Walsh Act, N.J.S.A. 40:74-5.
I.
On May 3, 2013, the Borough introduced and passed Bond
Ordinance No. 522 (2013) (ordinance). The ordinance authorized
issuance of $470,250 in bonds to finance the cost of various
capital improvements, including acquisition of a police sport
utility vehicle, backhoe loader, street sweeper and skid steer;
purchases for firefighters such as turn-out gear, flood valves,
a hydric hose press, plasma cutter and repairs to the fire
house; purchase of office equipment; purchase of computers,
software, and technology equipment for the Police Department;
purchase of office furniture for offices in Borough Hall;
3 A-0870-13T3 replacement or upgrade of a fueling station; and acquisition of
equipment for the Public Works Department.
The ordinance was published in The Press of Atlantic City
on May 9, 2013. Thereafter, at a specially advertised May 20,
2013 public meeting, the Borough passed the ordinance on its
second and final reading.
Plaintiff is comprised of five Borough registered voters:
Anna M. Santora, Gerard P. McNamara, Frederick J. Schweikert,
Herbert C. Frederick, and Anthony J. Santora. The petition
expressed it was drawn in compliance with N.J.S.A. 40:74-5, and
contained the names and addresses of four of the five members,
omitting Anthony J. Santora.2 Plaintiff's members circulated the
petition seeking to repeal the ordinance or place a referendum
before the voters in the upcoming election. Plaintiff gathered
sixty-two resident signatures, which exceeded fifteen percent of
the votes cast in the preceding general election.3 Plaintiff
then filed the notarized petition with Frederick on June 7,
2013.
2 Plaintiff actually submitted eight copies of the petition, each containing a varying number of voters' signatures. For convenience we refer to documents by using the singular, petition. 3 Enclosed with the petition was a statement from Cape May County reflecting the Borough's electorate cast two hundred and thirty-two votes in the prior general assembly election.
4 A-0870-13T3 By letter dated June 15, 2013, Frederick rejected the
petition, listing several deficiencies. First, she noted the
petition was "defective because the petition d[id] not have the
required number of Members of the Committee of Petitioners as
per N.J.S.A. 40:74-5." Second, the notarized month on two of
the forms was illegible. Third, one form reflected a notarized
date of May 6, 2013, which was prior to the final adoption date
of the ordinance. Frederick explained because "the [p]etition
was fatally flawed from the onset, . . . [it would] not be
forwarded to the Board of Commissioners pursuant to N.J.S.A.
40:74-5."
In response, plaintiff amended the petition. Anthony J.
Santora's name was added below the names and addresses of the
other four members. Also, the notary, who executed the original
attestation, corrected the erroneous date, striking a line
through the incorrect "May 6, 2013" and replacing it with "June
6, 2013," the date voters signed the petition. The notary also
crossed out the illegible months and replaced them with "June,"
adding her initials to these changes. The amended petition was
resubmitted on June 19, 2013.
Frederick found the amended petition defective and returned
it to plaintiff on June 25, 2013. She explained the amended
petition was merely the original petition, modified in a manner
she found unacceptable because N.J.S.A. 40:74-5 required a
5 A-0870-13T3 petition to identify five committee members prior to gathering
voters' signatures. Frederick concluded the mere addition of
the fifth petitioner, after voters had executed the petition,
was insufficient. Further, Frederick took issue with the
correction of the notarized dates, but did not explain the
purported irregularity.
On July 19, 2013, plaintiff filed an order to show cause
and a verified complaint in lieu of prerogative writs demanding
"judgment against the Borough and . . . Frederick[,] compelling
the suspension of [the ordinance] and presentation of said
[o]rdinance to the voters" along with compensatory damages,
punitive damages, attorney's fees and such other relief the
court deemed just and appropriate. Judge Mendez presided over
the evidentiary hearing held on the return date of the order to
show cause. Frederick and Anthony J. Santora testified. Judge
Mendez requested the parties submit briefs and scheduled the
matter for final argument on September 27, 2013.
Despite the pending legal challenge to the petition's
rejection, Elaine Crowley, the Borough's Acting Chief Financial
Officer, prepared a "Certificate of Down Payment" and Frederick
prepared a "Clerk's Certificate" attesting to the ordinance's
adoption and the denial of plaintiff's protests. These forms
were submitted to bond counsel. On July 26, 2013, the Borough
secured and issued bond anticipation notes and Crowley executed
6 A-0870-13T3 a "Certificate of Determination and Award," selling the notes to
Oppenheimer & Company, Philadelphia. The same day, Oppenheimer
wired funds to the Borough's savings account.
In a written opinion, Judge Mendez considered plaintiff's
complaint. He first determined relaxation of the statutory
twenty-day period to file a protest to an ordinance was
necessary, in the interests of justice. Reviewing whether the
petition was valid, Judge Mendez concluded the petition, as
corrected, should have been accepted. He directed Frederick and
the Cape May County Board of Elections to make necessary
arrangements to place a referendum question on the November 2013
general election ballot. The judge memorialized his decision in
a contemporaneous order filed October 3, 2013. Defendants'
appeal followed. The order was stayed pending our review.
II.
On appeal, defendants challenge the court's decision,
arguing: plaintiff's protest of the ordinance was untimely and
its complaint should have been dismissed; the trial judge failed
to harmonize the referendum requirements of the Walsh Act and
erroneously relied on the provisions of the Home Rule Act; and
the court erred in finding Frederick's rejection of the petition
was arbitrary and capricious.
7 A-0870-13T3 As a general rule in non-jury actions, we reverse a trial
court's conclusions that are based on factual findings so wholly
unsupportable as to result in a denial of justice. Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).
See also R. 1:7-4; Pressler & Verniero, Current N.J. Court
Rules, comment 2 on R. 1:7-4 (2014). However, we afford no
special deference to a trial judge's "interpretation of the law
and the legal consequences that flow from established facts,"
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995), which are subject to our plenary review. Dep't of
Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div.
2007).
A.
Determining the validity of a petition seeking referendum
of the proposed bond ordinance, as well as a citizen's right to
do so, requires review of statutes governing referenda. We will
examine these statutory provisions below. Suffice it to say,
each requires any request for referendum must be filed within
twenty days from the date of publication, after final passage of
the challenged ordinance. Further, Rule 4:69-6(b)(11), which
governs actions in lieu of prerogative writs, (including any
challenge to review a municipal resolution or ordinance
authorizing the issuance of notes or bonds) requires a complaint
be filed within twenty days from the date of the publication
8 A-0870-13T3 following final passage of the ordinance. Upon the expiration
of this twenty-day period, consideration of a challenge to a
bond ordinance is generally barred. N.J.S.A. 40A:2-49.
Here, the second and final reading of the ordinance was
held on May 20, 2013, with publication on May 23, 2013.
Plaintiff filed its petition with Frederick fifteen days later.
Frederick rejected the petition on June 15, 2013. The amended
petition was resubmitted on June 19, 2013. It too was rejected
and Frederick declared the ordinance operative, pursuant to
N.J.S.A. 40:49-27(b), as of June 25, 2013, triggering
commencement of the twenty-day period for protest. See R. 4:69-
6(b)(11) (disallowing a complaint in lieu of prerogative writs
to challenge a bond ordinance filed more than twenty days
following publication after final passage). However,
plaintiff's prerogative writs complaint was not filed until July
19, 2013.
The trial court determined the "interests of justice"
required enlargement of the time period to challenge the
ordinance, as permitted by Rule 4:69-6(c), because the
referendum concerned "important legal questions of great public
interest." Judge Mendez found it compelling that more than
twenty-seven percent of the total voters participating in the
last general election had executed the petition. Also, he found
the Borough would not be unduly prejudiced as it was on notice
9 A-0870-13T3 plaintiff intended to challenge the ordinance within the twenty-
day period. Moreover, the delay, in part, resulted from
confusion regarding the propriety of procedural provisions
relied upon by Frederick and competing authorities regulating
correction of notarial errors. Most important, Judge Mendez
concluded the delay in filing was very brief and should not
stand in the way of the voters' right to decide a critical
financial issue. Consequently, he concluded the complaint would
not be time-barred and must be considered.
Defendants argue the judge erred because the twenty-day
time bar must be strictly construed. We reject this contention.
Such an interpretation would render inoperative the provisions
of Rule 4:69-6(c), which specifically allows the expansion of
the twenty-day period when the interests of justice require such
a result. See Schack v. Trimble, 28 N.J. 40, 48 (1958) (stating
Rule 4:69-6(c) "is merely an attempt to restate in the form of a
generalized standard, decisional exceptions which had already
been engrafted upon the rule").
Relaxation depends on "considerations of fairness," Borough
of Princeton v. Bd. of Chosen Freeholders of the Cnty. of
Mercer, 169 N.J. 135, 156 (2001), after taking into account "all
relevant equitable considerations under the circumstances."
Pressler & Verniero, supra, comment 7.3 on R. 4:69-6(c). As
Judge Mendez identified, "cases involving . . . important public
10 A-0870-13T3 rather than private interests[,] which require adjudication or
clarification" certainly provide the equitable considerations
for such an exception. Brunetti v. New Milford, 68 N.J. 576,
586 (1975). See also Thornton v. Ridgewood, 17 N.J. 499, 511
(1955) (finding laches should not be applied to a taxpayer suing
on behalf of a municipality to prevent alleged misuse of
municipal funds, particularly where municipal contract at issue
was executory at the time of suit); Newark Morning Ledger Co. v.
N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 158 (App.
Div. 2011) (finding enlargement of forty-five-day statute of
limitations under the Open Public Records Act, N.J.S.A. 47:1A-1
to -13, appropriate, "coincident with the provisions of Rule
4:69-6(c)").
Here, the delay was merely four days and plaintiff "cannot
be said to have slumbered on its rights." Hopewell Valley
Citizens' Group, Inc. v. Berwind Prop. Group Dev. Co., 204 N.J.
569, 585 (2011). Further, prejudice to the Borough was minimal
or non-existent. Plaintiff expressed its "inten[t] to exercise
[its] right to challenge [the] ordinance," by filing a petition
of protest putting the Borough on notice. Indeed, plaintiff's
complaint was filed before the bond sale was effectuated,
stripping the Borough of a claim of reliance on the period of
repose. See, e.g., Jersey City Educ. Assoc. v. City of Jersey
City, 316 N.J. Super. 245, 251-52 (App. Div. 1998), certif.
11 A-0870-13T3 denied, 158 N.J. 71 (1999) ("The approval of a municipal bond
ordinance and the complexities of preparing for the sale of
municipal bonds must have the benefit of the repose arising from
a statutory time-bar on continued litigation.").
Finally, the matter raised an important public question of
the mandated procedure for voters to exercise their rights to
seek referendum and repeal of a significant expenditure of hard-
earned taxpayer dollars, which would incur long-term
indebtedness. Judge Mendez correctly considered all facts and
circumstances, including the length of the delay, plaintiff's
diligence, the urgency of the proposed bond expenditures and the
right of voters in this "relatively small borough" "to have a
say" in this government decision affecting "a relatively large
and important portion of the [Borough's] budget[.]" See In re
Petition for Referendum on City of Trenton Ordinance 09-02, 201
N.J. 349, 353 (2010) ("[Referenda] is an exercise in democracy
that profoundly affects the relationship between the citizens
and their government by affording the people the last word if
they choose to take a stand against the wisdom of an ordinance
that the government has enacted."); In re City of Margate City,
424 N.J. Super. 242, 251 (App. Div. 2012) ("A court should be
especially reluctant to restrictively construe a statute that
establishes a right to a public referendum regarding an
ordinance authorizing the incurring of an indebtedness."). The
12 A-0870-13T3 determination allowing consideration of plaintiff's complaint
was not an abuse of discretion.
B.
"The New Jersey Constitution does not contain a referendum
clause permitting voters to directly challenge state or
municipal legislative enactments." In re Ordinance 04-75, 192
N.J. 446, 459 n.7 (2007). A voter's right to do so is
statutory. The controversy at hand examines the provisions of
two statutes, which defendants identify as containing a
perceived incongruity in the procedural requirements necessary
for presentation of referendum to voters. Suggesting this is
"an issue of first impression," defendants assert the trial
court erred by failing to harmonize N.J.S.A. 40:74-5 of the
Walsh Act and N.J.S.A. 40:49-27 of the Home Rule Act. To
provide necessary context, we first detail the statutory
provisions.
The Borough is incorporated under the Commission Form of
Government Law, more commonly known as the Walsh Act, N.J.S.A.
40:70-1 to 40:76-27. Under the Walsh Act citizens can challenge
an ordinance requesting its repeal or seeking a referendum, as
follows:
If within 20 days after the final passage of an ordinance, except . . . ordinances authorizing an improvement or the incurring of an indebtedness, . . . a petition signed by electors of the municipality equal in
13 A-0870-13T3 number to at least 15% of the entire vote cast at the last preceding general election at which members of the General Assembly were elected protesting against the passage of such ordinance, be presented to the board, it shall thereupon be suspended from going into operation and the board of commissioners shall reconsider the ordinance within 20 days of the presentation of the petition to the board. If the ordinance is not entirely repealed, the board shall submit it . . . to the vote of the electors of the municipality. . . . An ordinance so submitted shall not become operative unless a majority of the qualified electors voting on the ordinance shall vote in favor thereof.
The names and addresses of five voters, designated as the Committee of the Petitioners, shall be included in the petition.
[N.J.S.A. 40:74-5.]
Also implicated in this appeal are provisions of the Home
Rule Act. "The Home Rule Act, which applies to every
municipality in the State regardless of the form of government
under which it operates, was enacted in 1917. L. 1917, c. 152."
Margate City, supra, 424 N.J. Super. at 245. The Home Rule Act
establishes a right to a public referendum regarding any
ordinance authorizing the incurring of indebtedness. N.J.S.A.
40:49-27.4 This provision states in pertinent part:
4 We further note N.J.S.A. 40:49-9 addresses a right to a public referendum with respect to any ordinance authorizing improvements.
14 A-0870-13T3 Any ordinance authorizing the incurring of any indebtedness, except for current expenses, shall become operative 20 days after the publication thereof after its final passage, unless within those 20 days a protest against the incurring of such indebtedness shall be filed in the office of the municipal clerk, by a petition signed by registered voters of the municipality equal in number to at least 15% of the number of votes cast in the municipality at the most recent general election at which members of the General Assembly were elected, in which case such ordinance shall remain inoperative until a proposition for the ratification thereof shall be adopted, at an election to be held for that purpose, by a majority of the qualified voters of the municipality voting on the proposition[.]
[Ibid.]
As set forth above, plaintiff's petition identified it was
prepared pursuant to N.J.S.A. 40:74-5 of the Walsh Act; however,
the original document included only four names and addresses of
voters, "designated as the Committee of the Petitioners," rather
than the statute's compulsory five. Judge Mendez determined the
designation of five members was unnecessary because the protest
challenged an ordinance authorizing capital improvement
indebtedness, a subject specifically excluded by challenges
pursuant to N.J.S.A. 40:74-5 of the Walsh Act. In addition, he
relied on N.J.S.A. 40:49-27 of the Home Rule Act, which contains
no requirement to identify the petitioners who are rallying a
protest of a municipal indebtedness ordinance.
15 A-0870-13T3 Defendants argue Judge Mendez erred in concluding a
petition for referendum of an indebtedness ordinance was
governed solely by the Home Rule Act, with no Committee of
Petitioners requirement. They assert the referendum provisions
of the Walsh Act and the Home Rule Act must be read in pari
materia, such that a petition for referendum under the Home Rule
Act must also comply with the Committee of Petitioners
requirement in N.J.S.A. 40:74-5 when submitted to the Clerk of a
Walsh Act municipality. We are not persuaded.
The "overriding objective in determining the meaning of a
statute is to 'effectuate the legislative intent in light of the
language used and the objects sought to be achieved.'" McCann
v. Clerk of Jersey City, 167 N.J. 311, 320 (2001) (quoting State
v. Hoffman, 149 N.J. 564, 578 (1997)). "It is a cardinal rule
of statutory construction that full effect should be given, if
possible, to every word of a statute." Id. at 321 (internal
quotation marks and citation omitted). While statutory language
"'is the surest indicator of the Legislature's intent[,]'"
Lipkowitz v. Hamilton Surgery Ctr., LLC, 415 N.J. Super. 29, 35
(App. Div. 2010) (quoting Alan J. Cornblatt, P.A. v. Barow, 153
N.J. 218, 231 (1998)), it is also incumbent that we "harmonize
the individual sections and read the statute in the way that is
most consistent with the overall legislative intent." Fiore v.
Consol. Freightways, 140 N.J. 452, 466 (1995).
16 A-0870-13T3 Importantly, "[t]he referendum provision in the Home Rule
Act is . . . useful and important, and [the courts] have an
obligation to promote, where appropriate, its beneficial
effects." Retz v. Saddle Brook, 69 N.J. 563, 571 (1976). In
the context presented here,
[a] court should be especially reluctant to restrictively construe a statute that establishes a right to a public referendum regarding an ordinance authorizing the incurring of an indebtedness. The New Jersey Constitution recognizes that there is a particularly strong need for public participation, in the form of a referendum, in a legislative decision to incur indebtedness.
[Margate City, supra, 424 N.J. Super. at 251.]
This court recently examined whether the Home Rule Act
applied to a Walsh Act municipality when voters filed a petition
for a public referendum challenging an ordinance authorizing
municipal indebtedness. See Margate City, supra, 424 N.J.
Super. at 246. In Margate City, we examined both statutes and
determined the referendum provision of the Walsh Act, N.J.S.A.
40:74-5, specifically excludes "ordinances authorizing an
improvement or the incurring of an indebtedness," while the Home
Rule Act, N.J.S.A. 40:49-27, is directed to repealing "any
ordinance authorizing the incurring of an indebtedness."
Margate City, supra, 424 N.J. Super. at 246-48. We rejected the
trial court's restrictive reading of N.J.S.A. 40:74-5, as
17 A-0870-13T3 prohibiting citizens in a Walsh Act community from exercising
the right to petition for repeal of indebtedness ordinances.
Id. at 248. We concluded the Walsh Act provision, N.J.S.A.
40:74-5, as now constituted, was intended to codify the Supreme
Court's holding in Wethling v. Bd. of Comm'rs of the City of
Orange, 94 N.J.L. 36 (Sup. Ct. 1920), and the Home Rule Act
applied to Walsh Act communities. Margate City, supra, 424 N.J.
Super. at 248. In doing so, we concluded Wethling's holding
remained unchanged: a referendum on an ordinance authorizing the
incurring of indebtedness is governed by the Home Rule Act,
N.J.S.A. 40:49-27. Id. at 246, 248 (citing Wethling, supra, 94
N.J.L. at 38-39). We held:
the evident intent of the 1937 revision [to N.J.S.A. 40:74-5] was to preserve the applicability of the Home Rule Act requirements for obtaining a referendum regarding an ordinance authorizing the incurring of an indebtedness rather than to completely abolish the right of [Walsh Act] municipal residents to petition for a public referendum regarding such ordinances.
[Id. at 250.]
Although Margate City did not specifically examine the
procedural Committee of Petitioners requirement at issue here,
this court concluded the Legislature was aware of the statutes
it adopted and well-understood the provisions for referendum in
the two statutes were not identical. Id. at 246-50.
18 A-0870-13T3 Here, Judge Mendez closely examined the language of the
Home Rule Act and rejected defendants' argument that the
omission of the Committee of Petitioners requirement was a mere
legislative oversight. Contrary to defendants' suggestion, we
find no error in Judge Mendez's conclusion that the statutory
distinctions were purposeful.
The Home Rule Act is restricted to indebtedness challenges
and includes precise procedures particularly suited to the type
of bond ordinance being protested. The Home Rule Act favors
taxpayers, because they must bear the financial burden of bond
ordinances long after the municipal officials who agreed to
incur debt have departed public office. As noted by Judge
Mendez, if the Legislature intended to add the Committee of
Petitioners requirement to the Home Rule Act referendum
procedures added in 1986, it could have done so.
It is firmly established that "'[t]he Legislature is
presumed to know the law.'" David v. Gov't Emps. Ins. Co., 360
N.J. Super. 127, 143 (App. Div.), certif. denied, 178 N.J. 251
(2003). Certainly, the Legislature is conversant with its own
enactments, particularly when a statute is considered for
amendment. Therefore, the Home Rule Act's absence of a
requirement to identify a five-member Committee of Petitioners
when protesting a bond ordinance was not an accident or an
oversight. To the contrary, the Home Rule Act's exclusion of
19 A-0870-13T3 the Committee of Petitioners requirement for a public referendum
challenging a municipality's decision to incur long-term debt
was decisive and in keeping with "the public policy favoring
voter participation in a legislative decision to incur
indebtedness." Margate City, supra, 424 N.J. Super. at 251.
Indeed, this view aligns with the State Constitution's
recognition of a "strong need for public participation, in the
form of a referendum, in a legislative decision to incur
indebtedness." Ibid. See also N.J. Const. art. 8, § 2, ¶ 3
(setting forth the Debt Limitation Clause, which provides any
statute authorizing state indebtedness "shall [not] take effect
until it has been submitted to the people at a general election
and approved by a majority of the legally qualified voters of
the State voting thereon").
Following our review of the relevant provisions of the
Walsh Act and the Home Rule Act, we conclude the referendum
procedures contained in the Home Rule Act, governing challenges
to indebtedness ordinances do not require listing petitioners.
Therefore, we reject defendants' challenge essentially for the
reasons set forth in Judge Mendez's written opinion.
Having determined plaintiff fulfilled the requirements of
N.J.S.A. 40:49-27(a) to -27(c), the petition should have been
accepted. Further, the ordinance should have remained
20 A-0870-13T3 inoperative until ratified or repealed at the next general
election. N.J.S.A. 40:49-27.
C.
Defendants' last argument seeks reversal of the finding
that Frederick arbitrarily and capriciously rejected plaintiff's
petition for notarial defects. Although Frederick properly
identified the notary errors in the petition as originally
submitted and informed plaintiff of the deficiencies, she did
not inform plaintiffs how to address the defects. In
particular, Frederick did not instruct plaintiffs that the
corrections required execution of a new notarial act affixed on
a newly prepared document. She did not explain plaintiff would
again need to acquire signatures from voters supporting the
petition. Further, Frederick's subsequent rejection of the
corrected petition also made no mention of the basis of her
objection to the notary's corrections, exhibiting an
unreasonable exercise of her discretional authority. See
D'Ascensio v. Benjamin, 142 N.J. Super. 52, 55 (App. Div.) ("In
the absence of such statutory direction, a clerk has the
discretionary power to adopt any rational means of performing
his [or her] duty, subject to judicial review to determine
whether he [or she] has abused his [or her] discretion and acted
in an arbitrary manner."), certif. denied, 71 N.J. 526 (1976).
21 A-0870-13T3 Defendants argue Frederick reasonably supported her
decision to reject the petition by relying on a provision of the
New Jersey Notary Handbook, Chapter 8—Prohibited Acts and
Penalties, which states in pertinent part:
The New Jersey Notary Section lists these prohibitions for notaries:
1. You may not pre-date a notarial certificate to a date earlier than the date on which the corresponding document was executed.
. . . .
13. A notary should not amend a notarial certificate after the notarization is complete. If the notary fails to complete the notarial certificate with all the elements required by law while the person is present, the certificate should not be changed later. Instead, a new notarial act with a new notarial certificate is necessary.5
Plaintiff, on the other hand, identified information supplied by
the National Notary Association stating that when a notary errs
in "completing certificate wording, the best way to correct the
error is to line through the mistake, write in the correct
information, and initial and date the correction so that anyone
5 New Jersey Notary Handbook (Am. Soc'y of Notaries, 11th ed. 1999-2012).
22 A-0870-13T3 receiving the document knows who corrected the certificate and
when."6
Judge Mendez found fault with Frederick's handling of this
issue stating, "if a clerk desires an amendment to comply with a
specific guidance manual to the exclusion of other guidance
materials, she or he must communicate this desire to the voters
at the time of rejection." We agree.
Contrary to defendants' assertions, Frederick did not
provide plaintiff guidance or direction on how and why she
believed correction of the identified deficiencies should be
achieved. She merely noted the defects without further comment.
In rejecting the corrected petition, Frederick provided no
specificity as to the problem with the notarial amendments; she
summarily explained that "the subsequent correcting of the
notarized dates by the notary [was] also flawed." Frederick's
unexplained rejection was an arbitrary and capricious exercise
of her authority, which impeded the Borough voters from
exercising a fundamental right of participation in their
governance. After all, "the 'right of referendum' should be
liberally construed to further 'the legislative policy of
6 Notary Bulletin, Nat'l Notary Ass'n, http://www. national notary.org/bulletin/best_practices/quiz_answers/corrections.html (June 1, 2011).
23 A-0870-13T3 encouraging citizen interest and participation in local
government.'" In re Ordinance 04-75, supra, 192 N.J. at 455
(quoting Menendez v. City of Union City, 211 N.J. Super. 169,
172 (App. Div. 1986)).
Following our review, we affirm the October 3, 2013 order
substantially for the reasons set forth by Judge Mendez in his
written opinion. R. 2:11-3(e)(1)(A). The imposed stay of the
order is vacated.
Affirmed.
24 A-0870-13T3