NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0517-13T1

IN THE MATTER OF AN APPROVED FOR PUBLICATION INITIATIVE PETITION FOR THE September 8, 2014 ADOPTION OF AN ORDINANCE TO AMEND THE JACKSON TOWNSHIP APPELLATE DIVISION ADMINISTRATIVE CODE. _____________________________________

Argued February 26, 2014 — Decided September 8, 2014

Before Judges Grall, Nugent, and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L- 1217-13.

Renée Steinhagen argued the cause for appellants Nicolas Antonoff, Catherine V. Giancola, Richard F. Davidson, Raymond J. Cattonar, and Roger E. Downing (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, and New Jersey Appleseed Public Interest Law Center, Inc., attorneys; Ms. Steinhagen and Flavio L. Komuves, on the brief).

Kevin N. Starkey argued the cause for respondents Mayor and Township Council of Jackson Township (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Mr. Starkey, on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

This appeal involves a governing body's pre-election

challenge to an ordinance proposed in an initiative petition.

The trial court declared a section of the ordinance unlawful but, notwithstanding a severance clause in the ordinance,

declined to sever the unlawful section and order that the

excised ordinance be placed on the ballot. We affirm. We

conclude that the trial court had the authority to hear the pre-

election challenge to the proposed ordinance. We further

conclude that the court did not have the authority to revise the

ordinance and order that the altered ordinance be placed on the

ballot.

I.

Appellants, Nicolas Antonoff, Catherine V. Giancola,

Richard F. Davidson, Raymond J. Cattonar, and Roger E. Downing,

were the Committee of Petitioners responsible for an initiative

petition to amend a Jackson Township ordinance. Respondents are

the Mayor and Council of Jackson Township. Jackson Township is

organized under the Optional Municipal Charter Law (the Faulkner

Act), N.J.S.A. 40:69A-1 to -210. The power of local self-

government in municipalities organized under the Faulkner Act

includes, with some exceptions, the right of voters to "propose

any ordinance and . . . adopt or reject the same at the polls,

such power being known as the initiative." N.J.S.A. 40:69A-184.

"Any initiated ordinance may be submitted to the municipal

council by a petition signed by" a required percentage of legal

2 A-0517-13T1 voters. Ibid.; see also N.J.S.A. 40:69A-185 (setting forth the

procedures for the referendum process).

The petition must contain "the names and addresses of five

voters, designated as the Committee of the Petitioners, who

shall be regarded as responsible for the circulation and filing

of the petition and for its possible withdrawal as hereinafter

provided." N.J.S.A. 40:69A-186. As previously noted,

appellants are the Committee of Petitioners responsible for

filing the petition and proposed amended ordinance that are the

subject of this appeal.

The events that led to the initiative in this case began in

November 2011 when two of the appellants, Catherine V. Giancola

and Raymond J. Cattonar, prepared a "Jackson Township

Feasibility Study" on the topic of "Insourcing [the] Legal

Department." Their study "relied on, among other things,

extensive interviews of knowledgeable persons, and a thorough

review of available literature on the matter."

The purpose of the study was to "ascertain whether it is

more cost effective to retain an in-house legal staff versus

outsourcing Jackson Townships [sic] legal needs," which was the

practice at the time. The study recommended, as a cost-saving

measure, employing in-house counsel and a paralegal instead of

outsourcing legal work to a private firm. The study also

3 A-0517-13T1 proposed a shared-services agreement between the Township and

the Jackson Board of Education (the Board), in which the

Township's new in-house counsel would also handle legal matters

for the Board, at no additional cost. The Township and the

Board would still be able to retain outside counsel for

specialized legal services that could not be handled by the new

in-house attorney and paralegal.

From November 2011 through January 2012, appellants

"oversaw the drafting of the petition and ordinance" that

proposed to amend the Township's code provisions concerning its

legal department and municipal attorney. The ordinance

provides:

1. Section 3-87 of the Jackson Township Administrative Code is amended to read as follows:

A. There is hereby created the Department of Law, the head of which shall be the Director of Law, who shall be the Municipal Attorney. The Director of Law shall be a full-time salaried position, the compensation for which shall be fixed by the Council. There is also created the position of Paralegal Specialist within the Department of Law which shall be a full-time salaried position, the compensation for which shall be fixed by the Council. No full-time attorney of the Division of Law shall engage in any other practice of law for compensation unless the Mayor, in a signed writing, has approved the particulars of such other employment or practice of law.

4 A-0517-13T1 B. The Director of Law and the Paralegal Specialist shall be appointed by the Mayor with the advice and consent of the Township Council and, unless provided by other law, shall serve at the pleasure of the Mayor and Council. The Municipal Attorney shall be a graduate of an accredited law school duly admitted to the practice of law in the State of New Jersey for at least five years and an attorney at law of the State of New Jersey in good standing.

C. In order to efficiently and competently discharge the duties of the Division of Law, the Director of Law, within the limits of available appropriations, may retain other attorneys, paraprofessionals and other staff, either on a full- or part-time salaried or contract basis. Any retention of the services of other persons shall not be effective until disclosure of the person(s) retained and the purpose of their retention is made in writing to the Municipal Council at a public meeting.

D. The Division of Law, acting through its Director or such other person who has been delegated authority by the Director, shall be a legal advisor to the Mayor, Council and all departments, except as otherwise provided by the Charter or the Township Code. The Division of Law, acting through its Director or such other person who has been delegated authority by the Director, shall prosecute and defend actions and proceedings by and against the Township and every department thereof. In furtherance of these general powers and without limitation thereto, the Division shall:

(1) Advise the Council and its members, the Mayor and other officers of the Township, as to all matters which may be submitted for its opinion.

5 A-0517-13T1 (2) Review and approve all contracts, deeds, documents and instruments prior to the execution thereof by or on behalf of the Township.

(3) Institute litigation and conduct appeals from orders, decisions or judgments affecting any interest of the Township as determined in its discretion to be necessary or desirable.

(4) Subject to the approval of [the] Council, have the power to enter into any agreement, compromise or settlement of any litigation in which the Township is involved.

(5) Render opinions in writing upon any question of law submitted by the Mayor, the Council, the Business Administrator, Municipal Clerk, Tax Assessor, or the head of any department.

(6) Maintain a record of all actions, suits, proceeding and matters which relate to the Township's interest and report thereon from time to time as the Mayor or Council may require.

(7) Attend such Council meetings as requested by [the] Council.

(8) Have such other and different functions, powers and duties as may be provided by the Charter, this chapter or other ordinance; and

(9) At the request of the Jackson Township Board of Education or the duly-appointed officials thereof, and provided there is no conflict of interest under the Rules of Professional Conduct or other law regarding conflict of interest, provide the services described in this Section D to the Board of Education, without additional fees or compensation.

6 A-0517-13T1 2. All ordinances inconsistent with this Ordinance are repealed to the extent of their inconsistency.

3. This Ordinance shall take th effect on the 30 day following its approval by the Mayor and Council or, if submitted to and approved by the voters pursuant to [N.J.S.A.] 40:69A-184 et seq., on the 30th day following certification of the election results pursuant to [N.J.S.A.] 19:20-1 et seq. 4. The provisions of this Ordinance are severable. If any part of this Ordinance, or application of this ordinance, shall be ruled illegal, unconstitutional or void, the remaining parts of this ordinance shall be unaffected by such ruling. Every person signing an initiative petition proposing this ordinance, and every person voting to approve this Ordinance, would have signed the petition and/or voted to approve this ordinance notwithstanding the possibility that one or more parts of this Ordinance or applications of this Ordinance might be ruled illegal, unconstitutional or void.

In addition to the ordinance, a proposed question and

interpretive statement for the election ballot were drafted.

They stated:

QUESTION. Shall the Ordinance submitted by initiative petition, amending Section 3-87 of the Jackson Township Administrative Code ("Department of Law") and providing for a full-time salaried Director of Law and other staff, and authorizing the Board of Education to use the services of the Division of Law, be adopted?

INTERPRETIVE STATEMENT. This Ordinance proposes to amend the Jackson Township

7 A-0517-13T1 Administrative Code to provide for a full- time salaried Director of Law and other professional and nonprofessional staff. It would also authorize the Board of Education, in appropriate circumstances, to use the legal services of the Division of Law for its legal needs. The Ordinance would replace the current system of relying exclusively on part-time attorneys compensated by hourly rate rather than salary for the legal needs of the Township. A "Yes" vote is a vote to approve the Ordinance. A "No" vote is a vote against the Ordinance.

After appellants obtained the required number of signatures

for the petition, they filed it, and the municipal clerk

presented it to the members of the Township Council, who voted

unanimously to decline to adopt it. The ordinance would have

been placed on the ballot following the Council's action, but

after some delays not relevant to this appeal, the Mayor and

Council filed a complaint for declaratory judgment. In their

complaint, they alleged that provisions of the ordinance were

illegal, including the provision that provided for shared

services with the Board of Education. Appellants answered, and

the trial court disposed of the matter on cross-motions for

summary judgment after the parties briefed and orally argued

their positions.

Recognizing "countless examples of why the democratic

process should be reserved to the people at all times under the

Faulkner Act," the court nevertheless noted that paragraph

8 A-0517-13T1 1(D)(9) of the proposed ordinance conflicted with the Uniform

Shared Services and Consolidation Act (USSCA), N.J.S.A. 40A:65-1

to -35, which was enacted "to effectuate agreements between

local units for any service or circumstance intended to reduce

property taxes through the reduction of local expenses."

N.J.S.A. 40A:65-2(c). The court explained that the USSCA

required local units to enter an agreement to share services and

concluded "that the provision of the ballot question which

compels legal services to be provided to the Board of Education

at [its] request if not approved by the Township Committee would

ultimately fall."

Having so concluded, the court framed the dispositive issue

as whether it could "excise out that portion of the [o]rdinance

which violates the shared services agreement." As to that

issue, the court concluded that "[t]o do so the [c]ourt would

have to, in the [c]ourt's opinion, wholly change the intent of

the initiative." The court explained that excising the shared

services section of the proposed ordinance "would remove . . .

half of the relief sought."

The court believed that by excising paragraph 1(D)(9), the

proposed ordinance would be "eviscerated." Explaining that

courts should be reluctant to impose their will to make

petitions better, in that "[t]he will of the people should be

9 A-0517-13T1 protected and these [p]etitions should be recognized as

sacrosanct," the court concluded that severing the shared

services provision of the proposed ordinance would have a

significant impact on the will of the voters. Consequently, the

court declared the petition and proposed ordinance null and

void. Appellants appealed from the court's implementing order.

II.

Appellants present the following arguments for our

consideration1:

I. EVEN IF SUBPARAGRAPH D(9) OF THE ORDINANCE WERE DEFECTIVE, THE ROBUST SEVERABILITY CLAUSE IN THE PROPOSED ORDINANCE REQUIRED THE REMAINING UNCHALLENGED PORTIONS OF THE ORDINANCE TO BE PRESENTED TO THE VOTERS.

II. NEW JERSEY COURTS SHOULD NOT ENTERTAIN PRE-ELECTION CHALLENGES TO PARTS OF A CITIZEN INITIATIVE, AS SUCH CASES ARE NOT RIPE FOR RESOLUTION UNDER THE DECLARATORY JUDGMENTS ACT OR GENERAL PRINCIPLES OF JUSTICIABILITY.

"We review de novo the grant or denial of a motion for

summary judgment." Town of Kearny v. Brandt,

(2013). Moreover, the material facts in this case are

undisputed and this appeal presents for our review issues of law

1 We have renumbered appellants' arguments as I and II. In their brief, their first point heading addressed issues the trial court decided in their favor. Respondents state explicitly that they do not challenge those rulings on this appeal.

10 A-0517-13T1 only. "A trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled

to any special deference." Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan,

(1995).

We address appellants' second argument first.

Differentiating between "substantive" pre-election challenges to

initiative ordinances on one hand, and "procedural" or

"jurisdictional" challenges on the other, appellants argue that

the courts of this State should not entertain a challenge to the

substantive validity of such an ordinance. Relying upon James

D. Gordon, III, & David B. Magleby, Pre-Election Judicial Review

of Initiatives and Referendums,

(1989), appellants submit that such pre-election substantive

judicial review "involves issuing an advisory opinion, violates

ripeness requirements, undermines the policy of avoiding

unnecessary constitutional questions, and constitutes

unwarranted judicial interference with a legislative process."

Appellants maintain that "[r]esearch has not revealed any New

Jersey case where a court, in derogation of the generally-

applicable principles regarding ripeness, advisory opinions, and

separation of powers, has interfered with a legislative proposal

that, as here, is only alleged to be partially invalid, and

invalid on substantive grounds, not jurisdictional."

11 A-0517-13T1 Appellants also argue that the courts should not entertain

pre-election declaratory judgment challenges to proposed

ordinances because such challenges contravene the express

language of the Declaratory Judgments Act.

Appellants' argument that the Declaratory Judgments Act,

N.J.S.A. 2A:16-50 to -62, does not authorize a challenge to a

pre-election initiative ordinance, has previously been rejected.

In City of Newark v. Benjamin,

(Ch.

Div.), aff'd o.b.,

(App. Div. 1976), aff'd

o.b.,

(1978), the defendants, in challenging a

proposed ordinance, "argue[d] that an action for a declaratory

judgment under N.J.S.A. 2A:16-53 is not the proper procedure

because there exists no municipal ordinance to be construed."

The court noted that there were several cases "in which

declaratory judgments were sought before an ordinance had been

enacted. In each of these cases the courts declared the rights

of the parties and in each held the proposed ordinance invalid."

Ibid. (citing McCrink v. Town of W. Orange,

(App. Div. 1964); Smith v. Twp. of Livingston,

(Ch. Div.), aff'd o.b.,

(1969); Twp. of Sparta

v. Spillane,

(App. Div. 1973), certif. den.,

(1974)).

12 A-0517-13T1 The court explained that such decisions carry out the

purpose of the Declaratory Judgments Act, id. at 65-66, which 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 court reasoned that "[i]f an ordinance

is invalid on its face, it would be a useless expenditure of

effort and money to submit it to the electorate before its

validity has been determined." Benjamin, supra, 144 N.J. Super.

at 66-67. We agree with the reasoning in Benjamin.

Accordingly, we reject appellants' argument that pre-election

initiative ordinances cannot be challenged under the Declaratory

Judgments Act.

We also decline to follow an analytical framework in which

the result is determined by whether a challenge to a pre-

election initiative ordinance is characterized as

"substantive," as distinguished from "procedural" or

"jurisdictional." Our courts have neither adopted such

classifications nor used them to determine whether an issue is

ripe for adjudication. See e.g., Comm. to Recall Robert

Menendez v. Wells,

(2010) (quoting Benjamin,

supra, 144 N.J. Super. at 66) (explaining that "when the law

giving rise to an election 'is defective on its face,' there is

'good reason' to review the law's validity before voting");

13 A-0517-13T1 Clean Capital Cnty. Comm. v. Driver,

(App. Div.) ("Ordinarily, [a] court's review of the validity of

an initiative ordinance prior to its enactment is limited to

whether it is defective on its face, or the petitioners have

failed to follow the statutory requirements."), certif. granted

in part and denied in part and modified by,

(1988).

Existing precedent provides our trial courts with an adequate

framework for determining whether it is appropriate to decide

pre-election challenges to initiative ordinances.

Our opinion should not be construed as either determining

that the trial court correctly decided that paragraph 1(D)(9) of

the initiative ordinance was invalid on its face or as rejecting

as implausible the argument that paragraph 1(D)(9) could have

been construed as implicitly requiring compliance with the

USSCA. As respondents point out, those issues have not been

raised in this appeal and thus we do not consider them.

We now turn to appellant's argument that the trial court

erred by not severing paragraph 1(D)(9) from the initial

ordinance and submitting the remainder of the ordinance to the

voters. Appellants argue that "even if subparagraph (D)(9) of

the ordinance were defective, the robust severability clause in

the proposed ordinance required the remaining unchallenged

portions of the ordinance to be presented to the voters." They

14 A-0517-13T1 reason that the severability clause "affirmatively states the

intentions of the petition's drafters, its signers, and its

voters, that they wanted the ordinance to proceed even if it was

struck down in part." They nevertheless acknowledge that "there

is no clear New Jersey precedent that applies severability

provisions in the context of citizen initiatives."

Respondents contend the trial court properly recognized

that it would be required to re-write a substantial portion of

the initiative petition, including the question and

interpretative statement. They point out that "no legal

authority exists in New Jersey law for a court to re-write an

initiative petition through the doctrine of severability." They

further contend that precedents concerning severability clauses

in statutes and ordinances enacted and adopted "simply do not

apply" to initiative petitions. They maintain that "even if the

severability doctrine does apply to the [i]nitiative [p]etition,

the defective portions are so interwoven with the valid

portions, the [p]roposed [o]rdinance can no longer stand."

Whether a court may sever an unlawful clause from an

ordinance proposed in an initiative petition and order the

excised ordinance placed on the ballot, rather than having the

petitioners begin the initiative process anew, is a question our

courts have not answered. The issue has received attention

15 A-0517-13T1 elsewhere. The jurisdictions that have addressed it appear to

be divided along the lines of the parties to this action. For

instance, the Alaska Supreme Court has held that the courts of

that state have the authority to sever invalid portions of

ordinances proposed by initiative. McAlpine v. Univ. of Alaska,

(Alaska 1988). The court reasoned

that circumspect judicial exercise of the power to sever impermissible portions of initiatives will promote, rather than frustrate, the important right of the people to enact laws by initiative. Striking the entire initiative on the ground that one sentence of secondary importance is constitutionally invalid would be strong medicine. Such a decision forces the sponsors to choose between abandoning their efforts altogether and submitting a new application and expending, for the second time, the significant time and effort required to generate public enthusiasm and gather the requisite number of signatures. This would seriously impede the ability of the people to initiate laws, particularly when, as is often the case, the sponsors of an initiative are grass roots groups with limited resources.

[Id. at 93 (footnotes omitted); accord City of Colorado Springs v. Bull,

(Colo. App. 2006).]

The contrary view, as explained in an early decision by a

California appellate court, is that if a provision in an

ordinance proposed by initiative is invalid, the entire

initiative and ordinance must be invalidated. Bennett v.

16 A-0517-13T1 Drullard,

(Cal. App. 1915). The California appeals

court explained:

Here is a power granted unto the people, to propose their own laws for adoption, provided certain legal procedure be followed to properly place said laws before the voters. Assume, if you please, that certain features are included in such proposed laws or in connection therewith, which appealed to the voter, and in fact served as the controlling influence inducing him to sign the petition. Has he not the right to assume, and should not the law protect him in the assumption, that he will have the opportunity and right to vote for the matters which he has petitioned for? Or, shall the law permit the alteration of the measures which he has proposed and petitioned for, to the extent that he will be unable to recognize the same when he comes to cast his ballot?

In fact, is not the whole theory of initiative legislation based upon the security that the legislation proposed and petitioned for by the people shall be voted upon at the polls by them without interference, revision, or mutilation by any official or set of officials?

[Id. at 370. But see AFL v. Eu,

, 629 n.27 (Cal. 1984) (noting that an earlier California Supreme Court opinion "left open the test of severability [for initiatives] in preelection review" and stating that "it would constitute a deception on the voters for a court to permit a measure to remain on the ballot knowing that most of its provisions, including those provisions which are most likely to excite the interest and attention of the voters, are invalid."); Bighorn- Desert View Water Agency v. Verjil,

(Cal. 2006) ("When a significant

17 A-0517-13T1 part of a proposed initiative measure is invalid, the measure may not be submitted to the voters.").]

Here, the parties cite to and argue the cases in other

jurisdictions that support their respective positions. We

choose to resolve the issue based on the Faulkner Act itself and

existing precedent in this State.

Indisputably, in Faulkner Act municipalities there is a

"strong public policy favoring the right of the voters to

exercise their power of initiative." Clean Capital, supra,

(examining an initiative ordinance under the

Optional County Charter Law). That policy derives from the

Faulkner Act's goal "to confer upon municipalities the greatest

possible power of local self-government consistent with the

Constitution of this State." Mun. Council of Newark, supra, 183

N.J. at 363 (citation and internal quotation marks omitted).

For that reason, "[s]tatutory provisions for initiative . . .

[should] be liberally construed to effect the salutary objective

of popular participation in local government." Concerned

Citizens of Wildwood Crest v. Pantalone,

(App. Div. 1982).

Those same considerations, however, mandate minimal

judicial interference in the initiative process. As previously

noted, pre-election judicial review of the validity of an

18 A-0517-13T1 initiative ordinance "is limited to whether it is defective on

its face, or the petitioners have failed to follow the statutory

requirements." Clean Capital, supra,

;

cf. Comm. to Recall Robert Menendez, supra,

(noting there is good reason for pre-election judicial review

when the law giving rise to an election is defective on its

face).

The Faulkner Act itself supports that result. The Act

provides that if, within twenty days of an initiative petition's

submission to the municipal clerk, the municipal council "shall

fail to pass an ordinance requested by an initiative petition in

substantially the form requested . . . the municipal clerk shall

submit the ordinance to the voters unless" the Committee of

Petitioners withdraws it. N.J.S.A. 40:69A-191 (emphasis added).

We agree with respondents that this language requires that

initiative petitions under the Faulkner Act reach the voters in

substantially the same form as presented to the petitioners.

Moreover, in view of the strong policies underlying the

Faulkner Act, courts should not be making what are often

subjective decisions about the intent of voters who have signed

initiative petitions. This case illustrates the point.

Notwithstanding the severability clause, the parties have made

equally plausible arguments about the significance to the

19 A-0517-13T1 petition's signatories of paragraph 1(D)(9) of the proposed

ordinance.

The policies underlying the Faulkner Act would not be

served by the court severing part of the ordinance based on its

subjective evaluation of the significance of the school board

and severability clauses, then rewriting the ordinance, ballot

question, and interpretative statement. If a voter signs a

petition in a certain form, he or she should expect to see the

proposed ordinance in substantially that same form on the

ballot. A court cannot discern with any certainty which

provisions of an initiative ordinance induced each voter to sign

it. It is not the role of the courts to interfere with the

legislative powers granted to citizens of Faulkner Act

municipalities.

Affirmed.

20 A-0517-13T1