# Opinion

> New Jersey Superior Court Appellate Division · December 30, 2013

URL: https://www.frixlaw.com/law-library/cases/2647729

## Case

- **Full name:** Adam M. Finkel, Catherine M. Kavanaugh and James J. Wulf v. Township Committee of the Township of Hopewell and Paula Sollami-Covello, in Her Capacity as Clerk of the County of Mercer
- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** December 30, 2013
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2647729

## How later opinions describe it (automated extraction)

- 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
- holding the particular referendum question under N.J.S.A. 19:37-1 to be improper

## Opinion text

NOT FOR PUBLICATION WITHOUT THE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.

[(Emphasis added).]

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2647729. Public record. Not legal advice.