Opinion

NOT FOR PUBLICATION WITHOUT THE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