JOY DESANCTIS VS. BOROUGH OF BELMAR (L-3550-15, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1074-16T3

JOY DESANCTIS;1 MICHAEL SEEBECK;

PATRICIA COREA; NOREEN DEAN and

APPROVED FOR PUBLICATION

JAMES BEAN,

July 9, 2018

Plaintiffs-Respondents,

APPELLATE DIVISION

v.

BOROUGH OF BELMAR; MAYOR &

COUNCIL OF THE BOROUGH OF

BELMAR; COLLEEN CONNELLY,

Borough Administrator of the

Borough of Belmar; APRIL CLAUDIO,

Municipal Clerk of the Borough

of Belmar; and CHRISTINE

GIORDANO HANLON, Monmouth

County Clerk,

Defendants-Appellants.

_______________________________

Argued March 20, 2018 – Decided July 9, 2018

Before Judges Fasciale, Sumners and

Moynihan.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Docket No.

L-3550-15.

William W. Northgrave argued the cause for

appellants (McManimon, Scotland & Baumann,

LLC, attorneys; William W. Northgrave, Ted

1

Plaintiff/respondent Joy DeSanctis passed away on January 16,

2017.

Del Guercio, III, and Frances E. Barto, on

the brief).

Kenneth E. Pringle argued the cause for

respondents (Pringle Quinn Anzano, PC,

attorneys; Kenneth E. Pringle, of counsel

and on the brief; Denise M. O'Hara, on the

brief).

The opinion of the court was delivered by

MOYNIHAN, J.S.C. (temporarily assigned).

The Borough of Belmar, Mayor and Council of the Borough of

Belmar, Borough Administrator Colleen Connolly, and Municipal

Clerk April Claudio (collectively defendants)2 appeal from the

Law Division judgments entered against them.

The Mayor and Council of Belmar adopted Ordinance 2015-25

on July 7, 2015, appropriating $4.1 million for the construction

of the Fifth Avenue/Taylor Pavilion3 and authorizing the issuance

of bonds and notes totaling $3,895,000 to finance part of the

construction. After Belmar voters filed a protest petition

pursuant to N.J.S.A. 40:49-274 seeking a referendum on the

2

The Monmouth County Clerk advised the court she would not be

participating in this appeal.

3

Superstorm Sandy significantly damaged the original Fifth

Avenue/Taylor Pavilion, requiring its demolition.

4

N.J.S.A. 40:49-27 reads in part as follows:

Any ordinance authorizing the incurring

of any indebtedness, except for current

expenses, shall become operative 20 days

(continued)

2 A-1074-16T3

ordinance, the Mayor and Council approved Resolution 2015-159 on

August 18, 2015, authorizing the placement of the referendum on

the November 3, 2015 ballot. The resolution provided in part:

Section 3. [The General] election shall

have a referendum on the Ordinance. In

accordance with N.J.S.A. 40:49-10, the

question shall be put to the voters as

follows:

"To vote upon the public question printed

below if in favor thereof mark a cross (x)

or plus (+) in the square at the left of the

word YES, and if opposed thereto mark a

cross (x) or plus (+) in the square at the

left of the word NO.

[ ] YES Shall an ordinance of the Mayor

and Borough Council of the Borough

of Belmar entitled 'Ordinance

2015-25, []Bond Ordinance

Providing for the

(continued)

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, subject to the

provisions of [N.J.S.A.] 40:49-10 to 40:49-

12.

3 A-1074-16T3

[ ] NO Construction of the Fifth Avenue

Pavilion in and by the Borough of

Belmar, in the County of Monmouth,

New Jersey, Appropriating

$4,100,000 Therefor and

Authorizing the Issuance of

$3,895,000 Bonds or Notes of the

Borough to Finance Part of the

Cost Thereof'; finally adopted on

July 7, 2015, be ratified?"

Section 4. The Clerk is hereby

authorized and directed to submit this

resolution to the county clerk so the

process of placing a referendum on a ballot

can begin.

The County Clerk received the resolution and public question on

August 19, 2015.5

An interpretive statement of the ordinance was not

initially included in the passed resolution, although the

Borough Administrator testified before the trial court that both

she and the Mayor and Council informed a resident at the August

18 meeting that one would be prepared. The Borough

Administrator also testified that, after "[i]ndividual members

of Council spoke to [her] one-on-one after that meeting, again

reiterating their desire that there would be an explanatory

5

The trial judge indicated on the record that this date was

provided in "a certification of Bertha C. Sumick, Special Deputy

Monmouth County Clerk." No such certification was provided in

the record on appeal, but the parties do not contest the date of

receipt.

4 A-1074-16T3

statement,"6 she drafted the interpretive statement and

"circulated it" to the Borough Attorney, Borough Clerk and

Mayor. She submitted the interpretive statement – never voted

on by the Mayor and Council – which was received by the County

Clerk on August 28, 2015; it read:

This Ordinance provides for the

reconstruction of the [Fifth] Avenue

Pavilion, also known as Taylor Pavilion,

destroyed by Superstorm Sandy. The pavilion

will be one-story and have the same

functions and footprint as the prior

building. This Ordinance enables the

Borough of Belmar to finance the project

while obtaining reimbursement from the

Federal Emergency Management Agency (FEMA).

The short term borrowing is expected to be

repaid between 24 to 36 months. This

Ordinance was unanimously approved by Belmar

Mayor and Council on July 7, 2015.

Plaintiffs DeSanctis and Bean first learned of the

interpretive statement on September 9, 2015; that day Bean

expressed to the County Clerk his concern about information in

the interpretive statement. The County Clerk replied to him on

September 17 that she did "not believe there is any legal

recourse at this point as to the explanation [in the

interpretive statement] in terms of changing the ballot"; the

County Clerk mailed those ballots to the public the next day.

6

The parties use "explanatory statement" instead of interpretive

statement.

5 A-1074-16T3

Plaintiffs filed suit on September 22, 2015 seeking

judgment declaring the interpretive statement invalid because it

was never voted on by the Mayor and Council, thereby depriving

plaintiffs and the public an opportunity to comment on and

object to its content, which contained "inaccurate, misleading

and extraneous information," presenting another ground for

invalidation. They also sought removal of the interpretive

statement – in whole or part – from the ballot; and a

determination of their claim under the New Jersey Civil Rights

Act (CRA), N.J.S.A. 10:6-1 to -2, including a request for

attorneys' fees and costs. We perpend Judge Katie A. Gummer's

rulings on these issues, which arise from a series of orders

that: (1) held the interpretive statement invalid because it was

not submitted to the Mayor and Council for resolution and no

such resolution was made, and because it was misleading and

contained extraneous information intended to influence – not

inform – voters; (2) held defendants violated the CRA by

depriving plaintiffs a free and fair election, thus entitling

plaintiffs to attorneys' fees and costs; and (3) awarded

attorneys' fees and costs and prohibited payment from the

Borough of Belmar's Beach Utility Fund.

6 A-1074-16T3

I

Judge Gummer found persuasive the holding in Town of

Harrison Board of Education v. Netchert, 439 N.J. Super. 164,

186 (Law Div. 2014), and adopted that court's conclusion that an

interpretive statement submitted to a county clerk without a

resolution by the borough council was invalid. Echoing that

holding, which the judge found "well established and consistent

with the longstanding tradition of our State and our Country to

ensure fairness of our election system," she declared the Belmar

interpretive statement invalid. As plaintiffs note in their

merits brief, the Netchert court "did not precisely articulate

the rationale for [its] holding that [interpretive] statements

that are not required by N.J.S.A. 19:3-6 must be adopted by

resolution." We review questions of statutory interpretation de

novo. Tumpson v. Farina, 218 N.J. 450, 467 (2014).

We follow the well-trod trail of statutory interpretation:

In construing any statute, we must give

words "their ordinary meaning and

significance," recognizing that generally

the statutory language is "the best

indicator of [the Legislature's] intent."

DiProspero v. Penn, 183 N.J. 477, 492

(2005); see also N.J.S.A. 1:1-1 (stating

that customarily "words and phrases shall be

read and construed with their context, and

shall . . . be given their generally

accepted meaning"). Each statutory

provision must be viewed not in isolation

but "in relation to other constituent parts

so that a sensible meaning may be given to

7 A-1074-16T3

the whole of the legislative scheme."

Wilson ex rel. Manzano v. City of Jersey

City, 209 N.J. 558, 572 (2012). We will not

presume that the Legislature intended a

result different from what is indicated by

the plain language or add a qualification to

a statute that the Legislature chose to

omit. DiProspero, 183 N.J. at 493.

On the other hand, if a plain reading

of the statutory language is ambiguous,

suggesting "more than one plausible

interpretation," or leads to an absurd

result, then we may look to extrinsic

evidence, such as legislative history,

committee reports, and contemporaneous

construction in search of the Legislature's

intent. Id. at 492-93.

[Tumpson, 218 N.J. at 467-68 (alterations in

original).]

The Legislature provided, in N.J.S.A. 19:3-6, for both the

mandatory and permissive inclusion of an interpretive statement:

Any public question voted upon at an

election shall be presented in simple

language that can be easily understood by

the voter. The printed phrasing of said

question on the ballots shall clearly set

forth the true purpose of the matter being

voted upon. Where the question concerns any

amendment to the State Constitution, or any

act or statute or other legal titles of any

nature, the printed phrasing on the ballots

shall include a brief statement interpreting

same. In event that in any statute the

public question to be voted upon is so

stated as not clearly to set forth the true

purpose of the matter being voted upon and

no provision is made in said statute for

presenting the same in simple language or

printing upon the ballots a brief statement

interpreting the same, there may be added on

the ballots to be used in voting upon the

8 A-1074-16T3

question, a brief statement interpreting the

same and setting forth the true purpose of

the matter being voted upon in addition to

the statement of the public question

required by the statute itself.

Although the interpretive statement here is not mandated because

the public question does not concern a constitutional matter,

the discrete treatment accorded mandatory interpretive

statements enlightens our analysis.

Our Supreme Court in Gormley v. Lan, observed N.J.S.A.

19:3-6 "appears to impose [the duty to provide an interpretive

statement] mandatorily on the Legislature itself where an

amendment to the State Constitution is involved," but considered

it "understandable that the Legislature might prefer to leave

that task to others. Interpretive statements can be drafted in

an infinite variety of ways, and the Legislature may simply have

determined that arriving at an acceptable draft was not worth

the legislative energy." 88 N.J. 26, 36-37 (1981).

The Court did not expansively treat alternate authorship of

interpretive statements. It concluded only the Attorney General

was vested with the "discretion to determine whether an

interpretive statement should be added to the ballot under

N.J.S.A. 19:3-6, as well as the content of the statement

9 A-1074-16T3

itself," id. at 44, reading other statutes in pari materia with

N.J.S.A 19:3-67:

Cognate statutes in L. 1930, c. 187,

the act that is the source for N.J.S.A.

19:3-6, deal with the preparation of

referendum information to be distributed

with sample ballots (N.J.S.A. 19:14-27

through -32). Where the referendum concerns

a constitutional amendment, the Attorney

General is specifically required to inform

the Secretary of State what portions of the

State Constitution should be printed and

mailed to voters to help them understand

"the relation of the amendment submitted to

the existing constitution." N.J.S.A. 19:14-

29, -30. In addition, the statute

authorizes the Attorney General to make a

summary statement in order to inform the

voters of the effect that adoption or

rejection of the question will have on

statute law or the State Constitution.

N.J.S.A. 19:14-31.

[Gormley, 88 N.J. at 44.]

The Court recognized that the absence of an express authorship

grant to the Attorney General in N.J.S.A. 19:3-6 "might be

construed to evince an intent to vest the authority under that

section elsewhere," but reasoned "the sample ballot provisions

[of the 1930 law] reflect a pattern of legislative intent that

should be followed in interpreting [that statute]." Id. at 45.

7

"Statutes that deal with the same subject matter or subject

should be read in pari materia and construed together as a

unitary and harmonious whole." St. Peter's Univ. Hosp. v. Lacy,

185 N.J. 1, 14-15 (2005) (quoting In re Adoption of a Child by

W.P. and M.P., 163 N.J. 158, 182 (2000) (Poritz, C.J.,

dissenting)).

10 A-1074-16T3

If the Legislature, under N.J.S.A. 19:14-31, granted the

Attorney General the discretion to decide if a summary statement

should be provided to the public — and if so, the wording of

that statement — the Court saw "no reason why the Legislature

would have intended a different procedure in the case of [a]

brief interpretive statement." Ibid.

The Court specifically excluded the Secretary of State as

an alternate interpretive statement author, concluding the

Legislature invested no similar authority as that conferred on

the Attorney General. Id. at 44. Further, the Court observed

"that the Legislature in passing N.J.S.A. 19:3-6 [did not

intend] to authorize one of its committees to provide a

conclusive interpretive statement when the Legislature itself

declined to do so." Id. at 45.

Likewise, we perceive no legislative intent to vest a

borough administrator or municipal attorney with the authority

to author and submit an interpretive statement with a referendum

ballot. While the Attorney General may do so when an

interpretive statement is mandated, that authority is derived

from the statutory framework pertinent only to that scenario.

And the Attorney General may act only when the Legislature

declines. Kimmelman v. Burgio, 204 N.J. Super. 44, 54 n.3 (App.

Div. 1985).

11 A-1074-16T3

The statutory scheme also weighs against allowing a mayor

and council to outsource an interpretive statement. The

referendum procedure of the Home Rule Act — pursuant to which

the protest petition here was filed — requires a clerk to submit

a petition, once it is found sufficient, "to the governing body

of the municipality without delay," N.J.S.A. 40:49-27b, and

vests the governing body with the authority to "call a special

election therefor," N.J.S.A. 40:49-10. So too, N.J.S.A. 40:69A-

120 requires Belmar — a Faulkner Act8 Small Municipality

government — to exercise legislative powers by council.9

New Jersey has long recognized that governing bodies

"must act when assembled at stated or

special meetings, and organized with a

president to conduct, and a clerk to record,

its proceedings. Such body can hardly act

in any other manner than by ordinance or

resolution. Every act must be by a vote of

the members present; and, whether it is

called an order, direction or determination,

it is still a resolution, because it must be

resolved on, upon a motion made by some

member." Dey v. Jersey City, 19 N.J. Eq.

412, 416 (Ch. 1869). All through our

numerous cases dealing with municipal

action, it will be seen that a board or body

8

N.J.S.A. 40:69A-1 to -210.

9

Although the "legislative power" in a Small Municipality is

"exercised by the council," "[t]he mayor . . . participate[s]

and vote[s] as other council members" and "preside[s] over all

meetings of the council." N.J.S.A. 40:69A-120. We therefore

refer throughout this decision to actions by both "mayor and

council."

12 A-1074-16T3

can act only by ordinance or resolution;

these are the alternative methods. Any

action of the body which does not rise to

the dignity of an ordinance, is a

resolution.

[Woodhull v. Manahan, 85 N.J. Super. 157,

166 (App. Div.) (quoting Town of Irvington

v. Ollemar, 128 N.J. Eq. 402, 406 (Ch.

1940), aff'd o.b. sub nom. Irvington Nat'l

Bank v. Geiger, 131 N.J. Eq. 189 (E. & A.

1942) (emphasis added)), aff'd o.b., 43 N.J.

445 (1964).]

These enactments lead us to conclude that when the

Legislature provided the option for an interpretive statement to

"be added on the ballots to be used in voting upon [a public]

question" that does not clearly set forth its true purpose,

N.J.S.A. 19:3-6 – such as the ballot containing the referendum

approved by resolution of the Mayor and Council – that

interpretive statement had to be approved by the Mayor and

Council.

Such a procedure promotes government transparency, a clear

legislative aim discerned from reading the Open Public Meetings

Act (Sunshine Law), N.J.S.A. 10:4-6 to -21, in pari materia with

the statutes we here considered. See Polillo v. Deane, 74 N.J.

562, 574-76 (1977) (acknowledging the importance of allowing

voters: to follow the progress of public bodies that can

"influence in a material way a person's vote"; and to "have

access to the information considered by [such bodies] in

13 A-1074-16T3

arriving at [a] decision"); McGovern v. Rutgers, 211 N.J. 94, 99

(2012) (acknowledging the Sunshine Law's "clear statement of New

Jersey's public policy 'to insure the right of its citizens to

have adequate advance notice of and the right to attend all

meetings of public bodies at which any business affecting the

public is discussed or acted upon in any way'" (quoting N.J.S.A.

10:4-7)). It is also in line with the liberal construction that

must be accorded referendum statutes "for the purpose of

'promot[ing] the "beneficial effects"' of voter participation."

Tumpson, 218 N.J. at 468 (alteration in original) (quoting In re

Referendum Petition to Repeal Ordinance 04-75, 192 N.J. 446, 459

(2007)).

We previously held the Faulkner Act initiative and

referendum provisions, N.J.S.A. 40:69A-184, -185 – which we

characterized as "two useful instruments of plebiscite power

[which] provide a means of arousing public interest" – should be

liberally construed. Twp. of Sparta v. Spillane, 125 N.J.

Super. 519, 523 (App. Div. 1973). Our Supreme Court conferred

"equally useful" status to the referendum provisions in the Home

Rule Act, N.J.S.A. 40:49-27, in holding "we have an obligation

to promote, where appropriate, its beneficial effects." Retz v.

Saddle Brook, 69 N.J. 563, 571 (1976). If, through the

referendum process, citizens are allowed "the right to test a

14 A-1074-16T3

challenged ordinance in the crucible of the democratic process,"

In re Ordinance 04-75, 192 N.J. at 450; see also Tumpson, 218

N.J. at 467, we do not see that submission of an interpretive

statement to a county clerk without open approval of the

governing body is consonant with the public spirit of the

referendum laws.

We want to make clear, our ruling should not be construed

to require the Mayor and Council to formulate an interpretive

statement that is acceptable to all. Plaintiffs argue the

members of the Committee of Petitioners that filed the protest

petition were never informed by defendants of the proposed

interpretive statement language, depriving them of "an

opportunity to object or propose alternative language" to the

interpretive statement. While we fully agree the public should

be informed of the interpretive statement terms – hence our

requirement that the interpretive statement be publicly approved

– we point to the Gormley Court's perspicacious observation:

"Obviously there can be substantial dispute as to what the true

purpose of [a question] is; indeed there may be many 'true

purposes.'" 88 N.J. at 37. In light of the knotty

possibilities stemming from protracted debate over the

interpretive statement language, we leave the final wording to

the governing body, subject, of course, to the requirement that

15 A-1074-16T3

it fairly interpret the public question and set forth its true

purpose. Id. at 37-38.

We also note that a public vote on an interpretive

statement will allow objectors to commence court actions earlier

than if they learned of the content of same, as they did here,

after it is filed with the county clerk. In the tight electoral

time frame, any added time will avoid the rush to the courthouse

door, foster a more considered treatment of the issues involved

in a challenge, and avoid the expense of the publication – and

provision to the voters – of improper interpretive statements.

We agree with Judge Gummer that the never-formally-approved

interpretive statement was invalid.

II

Before analyzing whether attorneys' fees and costs were

properly awarded to plaintiffs under the CRA, we must first

address the judge's ruling that the interpretive statement was

invalid because it was misleading and contained extraneous

language; then whether defendants' actions deprived plaintiffs

of a substantive right protected by the CRA.

In our review of the interpretive statement, we heed the

Gormley Court's caution:

Rare is the case where the inadequacy of the

interpretive statement will justify the risk

of judicial intervention. That risk inheres

not simply in the proposal of an alternative

16 A-1074-16T3

but as well in the mere enjoining of the use

of the proposed statement. Either can

readily be perceived by one side or the

other as both prejudicial to their cause and

partial to that of their adversary.

[Id. at 39.]

Our highly deferential review is grounded in "settled

principles of law" and "the glaring inappropriateness of

judicial management and supervision of such matters." Id. at

38. The Court explained, "When within the scope of

legislatively-delegated authority, administrative agents'

actions are presumptively valid, and where that authority

confers discretion upon those agents, their actions will

ordinarily not be overturned by the courts unless they are

manifestly corrupt, arbitrary or misleading." Ibid.

The Legislature made clear its intent that an interpretive

statement be "a brief statement interpreting [the proposed

public question] and setting forth the true purpose of the

matter being voted upon." N.J.S.A. 19:3-6. We previously

recognized that the legislative aim was not focused on

whether advocates on one side of the issue

might prefer that the Act's description be

phrased differently to better enhance their

political position. In short, we may

intervene in such a circumstance only when

the interpretive statement is so unclear as

to preclude the voters' understanding of the

true purpose of the question or so

substantially unbalanced as to be biased.

17 A-1074-16T3

[McKenzie v. Corzine, 396 N.J. Super. 405,

418-19 (App. Div. 2007).]

As we discussed, the Gormley Court anticipated that there

can be "substantial dispute" as to a public question's "true

purposes." 88 N.J. at 37. Even so, the Court distilled the

"simple and clear" "spirit of the statute": "the brief statement

is to be added to help the voter understand more about the

amendment than the public question tells him, for the purpose of

aiding him in his decision." Ibid. And it must also be fair.

Id. at 38.

Only the last three sentences of the interpretive statement

are challenged:

1. This Ordinance enables the Borough of

Belmar to finance the project while

obtaining reimbursement from the Federal

Emergency Management Agency (FEMA).

2. The short term borrowing is expected to

be repaid between 24 to 36 months.

3. This Ordinance was unanimously approved

by Belmar Mayor and Council on July 7, 2015.

Both the content and context of these sentences manifest their

misleading nature, rendering the statement so unclear as to

preclude the voters' understanding of the true purpose of the

question, and so substantially unbalanced as to be biased, thus

requiring its invalidation.

18 A-1074-16T3

The Borough Administrator testified that she "was very

careful in how [she] structured the [first] sentence because

[she] did not specifically want to say that all of the costs

would be reimbursed." She contended she "simply said [the

project would be financed] as we pursue funding" from FEMA.

But, as Judge Gummer noted, the first sentence indicates that

the ordinance would enable the Borough to finance the

construction "while obtaining reimbursement" as if reimbursement

was a foregone conclusion. That is misleading. The Borough

Administrator knew the Borough was going to pursue funding; the

interpretive statement, however, disguised the uncertainty of

that funding, connoting to voters that the incurred indebtedness

would not ultimately be borne by them.

The judge found the second sentence to be unclear because

"a voter could interpret that as meaning that everybody expects

. . . to be repaid, or that someone, some omniscient person may

expect the short[-]term borrowing to be repaid." Standing

alone, the sentence is a fair explanation of the expected

repayment schedule; we see no reason why deference should not be

extended to this provision. To the extent, however, the second

sentence buttresses the misleading nature of the first sentence

– that the indebtedness would be repaid – we look at it askance.

19 A-1074-16T3

Judge Gummer credited the Borough Administrator's testimony

that the last sentence was added to the interpretive statement

"at the suggestion of certain members of the Council, who

thought it was a matter of importance that the public know that

the vote on the referendum was not contentious or on the

ordinance was not contentious." The judge found that "[t]he

only purpose . . . for that last statement was . . . a means of

persuasion to indicate to the voters that the Mayor and the

entire Council was unanimous. It does not inform them as to the

substance of the issue put before them." We wholly concur.

Most of the brief interpretive statement was designed to

sway – not inform – voters in defendants' attempt to finance

construction of the pavilion. This was their fourth attempt to

garner public support for the project.10 Despite knowing that

FEMA funds were not secured – albeit perhaps obtainable – the

Borough Administrator's wording of the interpretive statement

conveyed to voters a misleading sense that funding was readily

available. And the intent of the last sentence was a blatant

attempt to influence voters by presenting a unified front, in

clear contravention of the interpretive statement statute's

10

According to the verified complaint, the Borough attempted to

finance construction three other times, but the attempts failed

due to judicial intervention, voter referendum and citizen

outrage, respectively.

20 A-1074-16T3

spirit and letter.11 Lest we forget, defendants submitted the

interpretive statement without a public vote. These actions

derogated what our Supreme Court held to be a substantive right

protected by the CRA. Tumpson, 218 N.J. at 472-86.

We need not repeat the Court's comprehensive and

penetrating analysis in Tumpson, determining a municipal clerk

who refused to file a protest petition — proffered pursuant to

the Faulkner Act version12 — deprived the petitioners of their

substantive right of referendum under the CRA. Id. at 459-60,

486. We are unpersuaded by defendants' attempt to distinguish

Tumpson. Defendants were required – as were the Tumpson

defendants under the Faulkner Act, N.J.S.A. 40:69A-185, -187, -

191, see Tumpson, 218 N.J. at 478 — to ascertain if a petition

meets the statutory criteria and, if sufficient, to place the

challenged ordinance before the voters, N.J.S.A. 40:49-27b.

The fact that the interpretive statement in issue was

permissive does not negate that defendants had a binding

obligation to submit to the voters – once defendants chose to do

so – a statement that was fair, and not misleading and biased.

The "right to referendum is about enfranchisement, about self-

11

Even if the defendants acted in good faith, plaintiffs are

still entitled to relief under the CRA. Tumpson, 218 N.J. at

485.

12

N.J.S.A. 40:69A-185.

21 A-1074-16T3

government, and about giving citizens the right to vote on

matters of importance to their community." Tumpson, 218 N.J. at

480. That right – found substantive by the Court — is

meaningless if a governing body can alter that right by

submitting a manipulative interpretive statement to the

electorate. In determining whether the Faulkner Act referendum

provision conferred substantive rights, the Court applied a

three-part test whereby

plaintiffs must establish that (1) the

referendum statutes were intended to confer

a "benefit" on plaintiffs as a

representative class of voters of [the

municipality]; (2) the statutory right to

challenge an ordinance and place it before

the voting public is not "so 'vague [or]

amorphous' that its enforcement would strain

judicial competence"; and (3) the Faulkner

Act "unambiguously impose[s] a binding

obligation" on [the municipality]. Cf.

Blessing v. Freestone, 520 U.S. 329, 340-41

(1997).

[Tumpson, 218 N.J. at 477 (second and third

alterations in original).]

We note the Supreme Court has recently refined the three-part

test outlined in Tumpson to determine whether a statute confers

substantive rights for the purpose of establishing a CRA claim,

holding,

a court must determine: (1) whether, by

enacting the statute, the Legislature

intended to confer a right on an individual;

(2) whether the right "is not so 'vague and

amorphous' that its enforcement would strain

22 A-1074-16T3

judicial competence"; and (3) whether the

statute "unambiguously impose[s] a binding

obligation on the [governmental entity]."

[Harz v. Borough of Spring Lake, ___ N.J.

___, ___ (2018) (slip op. at 19-20)

(alterations in original) (quoting Tumpson,

218 N.J. at 475) (citing Gonzaga Univ. v.

Doe, 536 U.S. 273, 283-84 (2002)).]

This change however does not alter Tumpson's holding that "the

Legislature, through the Faulkner Act, clearly intended to

confer the right of referendum on the plaintiffs and voters of

[the municipality]." Harz, ___ N.J. ___ (slip op. at 22).

This was not, as defendants contend, a mere procedural act

of sending an interpretive statement to the County Clerk. The

drafting and submission of the misleading interpretive statement

violated the right of referendum as much as – although perhaps

more furtively – a clerk who refused to file a protest petition.

Controverting defendants' argument, plaintiffs established: the

referendum statute conferred a right on them as representatives

of the Belmar voters; the right to challenge an ordinance and

submit a question before the public is not at all amorphous or

vague; and N.J.S.A. 40:49-27b – like its Faulkner Act

counterpart – imposes a binding obligation on defendants.

Tumpson, 218 N.J. at 477-78. They have proven their substantive

right, giving rise to this cause of action.

23 A-1074-16T3

We also reject defendants' contention that plaintiffs "were

not deprived of the benefit conferred by N.J.S.A. 40:49-27 the

power of referendum since the referendum was received, reviewed

and put to a vote without inclusion" of the interpretive

statement. In Tumpson, the Court ruled the municipal clerk's

refusal to file the protest petition violated plaintiffs' right

of referendum even though judicial intervention later compelled

the filing. Id. at 481-84. Here, but for Judge Gummer's

intervention, the interpretive statement would have been

included with the public question. Indeed, as the judge found,

the statement was printed in the Asbury Park Press prior to the

court's order.13 Thus defendants deprived plaintiffs of their

right to referendum. "That a court comes to [plaintiffs']

rescue does not alter the nature of the earlier governmental

deprivation or anticipated deprivation." Id. at 483.

Any other arguments advanced by defendants on this issue

are without sufficient merit to warrant discussion in this

opinion. R. 2:11-3(e)(1)(E).

13

Counsel for the County Clerk informed the trial court that the

interpretive statement was also included with 229 vote-by-mail

ballots; although the votes were later stricken by the trial

court, the interpretive statement reached these voters. The

court did not find this as a fact; while we have no reason to

doubt counsel, we will not consider it as competent evidence.

24 A-1074-16T3

We therefore agree with Judge Gummer that the interpretive

statement was invalid because it was misleading and contained

extraneous language; and that defendants' actions deprived

plaintiffs of a substantive right protected by the CRA.

III

Defendants reprise their arguments relating to the

attorneys' fees and costs awarded pursuant to N.J.S.A. 10:6-

2(f): absent a retainer agreement between plaintiffs and counsel

it was not possible to assess the reasonableness of the fees

requested; that the fees and costs were to be borne by the

Borough's beachgoers should have been considered in denying a

contingency enhancement; and "the beachgoers, as beneficiaries

of plaintiffs' efforts in this case, should bear" the awarded

fees and costs.

We review fee determinations by trial courts with deference

and will disturb them "only on the rarest occasions, and then

only because of a clear abuse of discretion." Rendine v.

Pantzer, 141 N.J. 292, 317 (1995); see also Packard-Bamberger &

Co. v. Collier, 167 N.J. 427, 444 (2001). In our review of fees

awarded pursuant to fee-shifting provisions, we do consider

whether the trial court "sufficiently address[ed] the factors or

the framework that [our Supreme Court] established in Rendine."

Walker v. Giuffre, 209 N.J. 124, 148 (2012). The Court reposed

25 A-1074-16T3

discretion in trial courts to establish any contingency

enhancement in fee-shifting cases. New Jerseyans for a Death

Penalty Moratorium v. N.J. Dep't of Corrs., 185 N.J. 137, 158

(2005).

Just as she did throughout the case, Judge Gummer, in her

comprehensive and well-reasoned oral decision, gave careful

treatment to this issue, setting forth and assessing every

applicable standard in computing the lodestar fee, costs and the

contingency enhancement. Presented with an invoice and numerous

certifications of counsel — sufficient evidence from which to

analyze this issue, notwithstanding the absence of a retainer

agreement — she carefully appraised plaintiffs' counsels'

unchallenged billable hours and hourly rates, even excluding

excessive briefing hours; reviewed counsels' qualifications and

the high quality of the work that earned a successful result;

considered the complexity and pace of this litigation; and noted

the entirely contingent nature of counsels' compensation which

rendered the risk of non-payment high, before awarding a

lodestar fee of $36,940, costs of $1131.88 and a twenty-five

percent enhancement. We agree with her rationale and

conclusions, including her determination that the voters – not

the beachgoers – of Belmar were the beneficiaries of plaintiffs'

action. We therefore fully uphold her award decision.

26 A-1074-16T3

Affirmed.

27 A-1074-16T3