On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Bischoff, Milmed and Francis.
[176 NJSuper Page 316] Since November 6, 1962 the Township of Cherry Hill has operated under some form of Council-Manager form of government. On September 2 and 4, 1980 plaintiffs, functioning as a Committee of the Petitioners, filed with the township clerk 603 pages bearing 10,358 signatures calling for a referendum to change the form of government of the township. On September 22, 1980 the township clerk filed a certification stating that "the petition is defective both as to the form of the question and the number of valid registered signatures." N.J.S.A. 40:69A-187. On October 2, 1980 plaintiffs filed additional pages containing 2,418 signatures. By supplemental certificate the township clerk ruled that the form of the question was still deficient and the petition still contained inadequate signatures. N.J.S.A. 40:69A-188.
Plaintiffs filed a complaint in lieu of prerogative writs seeking (1) a declaration that the clerk's certification and rejection of the petition was arbitrary and an abuse of discretion, and (2) an order directing the township clerk to certify the petition to the county clerk for the purpose of placing the question on the ballot. Other relief not here pertinent was also sought.
An order to show cause returnable October 10, 1980 was filed with the complaint. Cross-motions for summary judgment were filed and made returnable that same date. At the conclusion of arguments held on the return day the trial judge ruled that the form of the petition did not conform to the statute (N.J.S.A. 40:69A-14). He entered an order granting defendant's motion for summary judgment as to count four of the complaint and dismissed the entire complaint (count four of the complaint sought a declaration that the form of the petition conformed to the statute). Plaintiff appealed. We accelerated the proceedings and at the conclusion of arguments held on October 14, 1980 we rendered an oral decision from the bench reversing the determination of the trial judge, ruling that the form of the petition was legally sufficient and remanding the matter to the trial judge for further proceedings on other counts of the complaint. This opinion is now filed to state the reasons for our action.
The controlling statute is N.J.S.A. 40:69A-14, which reads:
40:69A-14. Form of submission of question of adoption of optional plans of government.
The question to be submitted to the voters for the adoption of any of the optional plans of government authorized by articles 3 through 16, inclusive, and 12A of this act, including any of the alternatives contained in section 1-13 of this act, shall be submitted in the following form or such part thereof as shall be applicable:
"Shall of the (insert name of plan) Optional Municipal Charter Law, providing for (a division of the municipality into (insert number)
wards, with) councilmen (one to (insert number) be elected from each ward and (insert number) to be elected at large) be adopted by ?" (insert name of municipality)
The question stated in the petition was as follows:
Shall the Mayor-Council Plan B (Article 4), of the Optional Municipal Charter law, providing for a full time Mayor elected by the people for a four year term and seven (7) Councilmen at large for staggered four year terms in elections to be held on the second Tuesday of May, 1981, be adopted by the Township of Cherry Hill in the County of ...