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D''Ascensio v. Benjamin

Decided: November 17, 1975.

FRANK D'ASCENSIO, CITY CLERK, PLAINTIFF,
v.
JAMES BENJAMIN, ET AL., DEFENDANTS



Kimmelman, J.s.c.

Kimmelman

Sometime during the fall of 1973 a committee was formed to press for the adoption of an ordinance establishing a civilian complaint review board in the City of Newark. The board would have jurisdiction over all complaints alleging misconduct on the part of the police. The committee enlisted the aid of some local law students to draw up a petition urging the adoption of the ordinance. Commencing in January 1974 the committee proceeded to circulate the petition for the purpose of gathering signatures sufficient in number to force a public referendum on the question. On June 6, 1975 the committee presented to the City Clerk of Newark for filing 258 petition forms purportedly signed by 21,119 registered voters. The requisite number of signatures of registered voters for the City of Newark for the current year pursuant to N.J.S.A. 40:69A-184(b) has been stipulated as 9,056. Whether the efforts of the committee have borne success is the issue now before the court.

The City of Newark having adopted a form of municipal government pursuant to the terms of the Faulkner Act, L. 1950, c. 210; N.J.S.A. 40:69A-1 et seq. , is subject to the initiative and referendum provisions of N.J.S.A. 40:69A-184 et seq. These provisions sanction the only form of direct legislation allowed to the people in municipal affairs. The legislative scheme contemplates that the voters of a municipality may propose the passage of an ordinance by presenting the initiated ordinance to the municipal council

in the form of a petition signed by the appropriate number of registered voters. A referendum petition, on the other hand, seeks to have the voters reject at the polls an ordinance theretofore passed by the municipal council. It must also contain the same number of valid signatures. Unlike an initiative petition, a referendum petition must be promptly formulated and filed within 20 days after the passage of the objectionable ordinance. No such strict time limitation is legislatively prescribed for the formulation of and gathering of signatures for an initiative petition, N.J.S.A. 40:69A-185. Theoretically, in the absence of any direct legislative expression, the process of gathering signatures for an initiative petition could take several years. In the case at bar that process took at least 18 months, and accordingly one of the issues presented is the city clerk's contention that the petition is stale and for that reason must be rejected.

Upon the filing of an initiative petition the municipal clerk has 20 days within which to determine whether the petition is signed by a sufficient number of qualified voters. In actual practice the municipal clerk subcontracts the signature verification process to the county superintendent of elections who by virtue of his office, is also the commissioner of registration. If the petition is insufficient, the municipal clerk must set forth the particulars in which it is defective and promptly notify at least two members of the committee of petitioners. N.J.S.A. 40:69A-187. Within ten days after such notification of insufficiency a supplementary petition may be filed and the municipal clerk has another five days within which to examine and verify the amendments. If the insufficiency persists, no further action shall be taken on the petition. N.J.S.A. 40:69A-188. If the initiative petition is found to be sufficient, the clerk shall submit the same to the municipal council without delay and provision must be made for a public hearing. N.J.S.A. 40:69A-190.

If within 60 days after submission to it the municipal council shall fail to pass the ordinance proposed by the

initiative petition, the municipal clerk must submit the ordinance to the voters. N.J.S.A. 40:69A-191. Action by the voters on an ordinance so submitted shall take place at the next general or regular municipal election, provided at least 60 days shall have elapsed from the date of the final rejection of the ordinance by the municipal council or from the expiration of the original 60 days within which the council first had the opportunity to act. In other words, the voters must have a clear 60 days following municipal council action or inaction during which time they may debate and campaign for or against the passage of the ordinance. If no general or municipal election is scheduled to be held within 90 days (and the statute is not clear as to the time from which the 90 days runs), then the council may, in its discretion, provide for a special election. N.J.S.A. 40:69A-192. In the absence of provision by the council for a special election, the submission to the voters is to be at the next general or municipal election, whichever first occurs.

Under the most favorable of circumstances, with all signatures submitted ruled valid, approximately 140 days (shorter if the municipal council rejects the initiated ordinance promptly without using up its allotted 60 days) would have to elapse according to the statutory time periods before the issue could be submitted to the voters. Consequently, the filing by the committee of petitioners on June 6, 1975 made the attainment of the general election date of November 4, 1975 for submission to the voters quite uncertain.

In the instant matter the city clerk, after having delegated the signature verification process to the Essex County Superintendent of Elections, instituted this action one day before the expiration of the 20-day period following the filing of the petitions. He sought additional time to complete his work. Perceiving itself without authority to extend the statutory 20-day signature verification process, this

court elected to treat the clerk's complaint as a rejection of the petition and ruled that the committee of petitioners would have a further period of ten days within which to correct deficiencies upon being formally notified by the clerk as to the exact nature and extent of the same.

On August 1, 1974 the committee of petitioners was notified that they had only obtained 7,311 valid signatures, which fell 1,745 short of the 9,056 required. On August 4, 1975 the committee made a supplemental filing of 3,997 additional signatures. On August 8, 1975 the superintendent of elections notified the city clerk that only 1,053 signatures on the supplemental filing were good, and accordingly the clerk notified the committee that they then had 8,364 valid signatures, still 692 short. The committee of petitioners thereupon made oral application to the court for a hearing on the issue of the sufficiency of signatures. The hearing commenced on August 19, 1975.

It appears that the superintendent's office staff undertakes the signature verification process for the municipal clerk on a contractual basis for a fee of $9 an hour per person. The work is not conducted during regular working hours but rather by members of the office staff who work on a volunteer basis prior to 9 A.M. or after 4 P.M. Their work has traditionally been performed in two phases, appropriately enough designated as Phase I and Phase II. Phase I consists of ascertaining the election ward and district for each signature and then of checking out each signature in the applicable election binder book covering the address given on the petition by each signer. If a sufficient number of valid signatures are not attained during the Phase I work, Phase II work is usually undertaken. Phase II consists of the more tedious, time-consuming and laborious work of checking signatures not ...


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