[181 NJSuper Page 414] This court is presented with the novel issue of whether the right to propose an ordinance by voter initiative pursuant to N.J.S.A. 40:74-9 et seq. can properly be impeded by a decision of a ministerial officer such as a city clerk, even if supported by the advice of a city solicitor, that the subject of the ordinance is not appropriate for submission to the voters. Given compliance
with the formal requirements for submitting an ordinance, the city clerk must either place the ordinance on the ballot or seek forthwith a declaration from the courts as to the ordinance's validity. However, this court does not direct the city clerk to place the subject ordinance on the ballot based on a compelling showing that a proper case has been established herein for interfering with the initiative power. Although the Walsh Act, which gives voters the power of initiative and referendum as to ordinances, was adopted to encourage public participation in municipal affairs in the face of normal apathy and lethargy in such matters, the initiative procedure provided for in the Walsh Act does not apply to initiate the redevelopment process in a municipality.
The Atlantic City Council had, by ordinance, declared a need for the functioning of the Atlantic City Housing Authority in the late 1930s and of the Urban Redevelopment Agency in the 1970s pursuant to N.J.S.A. 40:55C-6. To date the council has not adopted a comprehensive urban redevelopment plan. As a condition precedent to proceeding with said redevelopment plan, N.J.S.A. 40:55C-17 provides in part that the governing body of the municipality must first, by ordinance, approve a redevelopment plan. Due to the inaction of the governing body as to the redevelopment process, plaintiffs wish to accomplish by an ordinance proposed by voter initiative what the municipality can do by ordinance, namely, to begin the redevelopment process.
Accordingly, plaintiffs submitted to the city clerk a "People's Ordinance" pursuant to N.J.S.A. 40:74-9, whose content is set out in the Appendix to this opinion.
Accompanying this proposed ordinance was a voters' petition signed by electors containing a request that the ordinance be submitted to a vote of the people if not passed by the board of commissioners. Plaintiffs' counsel received from the city clerk's office an unsigned, unsealed communication indicating, among other things, inter alia that plaintiffs' petition did not contain the number of voter signatures required by N.J.S.A. 40:74-14.
The communication validated 1092 of the signatures submitted and rejected 864, with the total number needed listed as 1491 by the city clerk.
Upon receipt of the initial petition the city clerk requested an opinion from the city solicitor as to whether the proposed ordinance was in fact proper for submission to the initiative process. On the same day as plaintiffs' attorney was informed that there were insufficient signatures validated on the initial petition, the city solicitor advised the city clerk that the proposed ordinance was in fact outside the scope of the initiative provisions of the Walsh Act. The city solicitor recommended that the proposed ordinance should not be processed further.
Pursuant to N.J.S.A. 40:74-13 plaintiffs submitted additional voter signatures to the city clerk in the form of an amended petition. Since this submission the city clerk has not certified the initial petition or amended petition as being either sufficient or insufficient.
Plaintiffs Atlantic City Housing Action Coalition, John Kelley, Mary Wilson, Herbert Wilson and Cora Boggs have filed a complaint in lieu of prerogative writs seeking a writ of mandamus pursuant to N.J.S.A. 40:74-9 et seq. directing Adelaide Deane, Clerk of the City of Atlantic City, to process the above-mentioned voter petitions. Specifically, plaintiffs demand that the city clerk examine the petitions to ascertain if they contain the requisite number of qualified voter signatures or, if insufficient, that they be returned to plaintiffs.
It must be noted at the outset that the city clerk exceeded her authority in undertaking to determine whether the proposed ordinance was within the power of the electorate to adopt. Although some jurisdictions have held to the contrary for various reasons, see Hughes v. Bryan , 425 P. 2d 952, 954 (Okl.Sup.Ct.1967) and Morehead v. Dyer , 518 P. 2d 1105, 1107 (Okl.Sup.Ct.1974), this court adopts the reasoning articulated by Chief Justice Traynor in Farley v. Healey , 67 Cal. 2d 325, 62 Cal.Rptr. 26, 431 P. 2d 650 (Sup.Ct.1967), as more compelling.
[U]nder section 180 of the Charter of the City and County of San Francisco, his [registrar of voters] duty is limited to the ministerial function of ascertaining whether the procedural requirements for submitting an initiative measure have been met. It is not his function to determine whether a proposed initiative will be valid if enacted or whether a proposed declaration of policy is one to which the initiative may apply. These questions may involve difficult legal issues that only a court can determine. The right to propose initiative measures cannot properly be impeded by a decision of a ministerial officer, even if supported by the advice of the city attorney, that the subject is not appropriate for submission to the voters. Given compliance with the formal requirements for submitting an initiative, the registrar must place it on the ballot unless he is directed to do otherwise by a court on a compelling showing that a proper case has been established for interfering with the initiative power. [431 P. 2d at 651-652; citations omitted; emphasis supplied]
Although the duty of the registrar of voters in Farley v. Healey was directly referable to a specific section of a municipal charter and the initiative measure under question in that case urged an immediate cease fire and American withdrawal from Vietnam, these factual dissimilarities to the instant case are not sufficiently distinctive to preclude that analysis from applying to the within factual complex. Therefore, it should ordinarily follow that a peremptory writ of mandamus issue directing the city clerk to determine the sufficiency of the signatures to the petition and, if determined to be sufficient, to place the proposed initiative on the ballot for a municipal election. However, defendant seeks to avoid this pitfall by suggesting that initiative measures cannot be submitted to the electorate unless they concern municipal affairs on which the board of commissioners could enact binding legislation. In discussing and clarifying the extent of the powers of the governing body of a municipality in the redevelopment process, defendant emphasizes frequently and at length the conditions precedent to proceeding with a redevelopment plan enunciated in N.J.S.A. 40:55C-17.
Plaintiffs counter by urging that the right to present "any ordinance" under the initiative power is preserved to the people by virtue of N.J.S.A. 40:74-9 et seq.; that this right is unlimited, as evidenced by the language of the statute, with the exception of a proposed ordinance fixing the ...