On Certification to the Superior Court, Appellate Division, whose opinion is reported at 181 N.J. Super. 7 (1981).
For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber and Pollock. Concurring in part, dissenting in part -- Justice Handler. The opinion of the Court was delivered by Wilentz, C.J. Handler, J., concurring and dissenting.
[88 NJ Page 28] The issue before us is the fairness of a statement that would appear on the ballot explaining a controversial public question.
We decided the case, without issuing an opinion, on an emergent basis on October 6, 1981, five days after receiving the record and briefs. Immediate decision was required in order to allow county clerks time to prepare and distribute ballots sufficiently in advance of election day, November 3, 1981. Further delay (by statute the ballots should have been mailed on October 9, 1981) would have jeopardized the ability of voters to cast absentee ballots. N.J.S.A. 19:57-11. We decided that the proposed interpretive statement issued by the Secretary of State was unfair. We suggested, but did not order, an alternative, which was thereafter adopted by the Secretary of State and actually used on the ballot. None of the parties to this litigation objected. This opinion explains our decision.
In June of 1981 the Legislature, pursuant to N.J.Const. (1947), Art. IX, par. 1, adopted a proposed constitutional amendment for submission to the voters.*fn1 The amendment concerns the doctrine that the State is the owner of all lands that have ever been flowed by the tide. The doctrine is, of course, more complicated than just stated, but the statement reveals the difficulty to which the amendment was addressed: the uncertainty of ownership resulting from the fact that it is often exceedingly difficult to determine whether a particular parcel, now dry, was once tidal flowed. The doctrine and the difficulties caused by it are reflected in numerous decisions including, more recently, Newark v. Natural Resource Council in the Dep't of Environmental Protection, 82 N.J. 530 (1980); Borough of Wildwood Crest v. Masciarella, 51 N.J. 352 (1968); Ward Sand & Materials Co. v. Palmer, 51 N.J. 51 (1968); O'Neill v. State Highway Dep't, 50 N.J. 307 (1967). As those decisions indicate, the State for 11 years, pursuant to N.J.S.A. 13:1B-13.1 et seq., has been engaged in a mapping program designed to perfect the State's claims and to provide notice to owners that the State claims title to their lands.
Apparently the delay in asserting State claims to such lands and the consequent impact on the owners' ability to use or sell their land was believed by some to require a remedy. While estimates vary, there is no question that the amount of land potentially subject to such claims is vast -- whether the State succeeds or not. The Assistant Commissioner for Natural Resources of the Department of Environmental Protection estimated in hearings preceding the Legislature's action that 235,000 acres might be involved. Hearings on Assemb. Conc. Res. 3037 before the Subcomm. of the Assemb. Agriculture and Environment Comm. 15 (1981) (hereinafter cited as "Assembly Hearings").
The remedy adopted by the Legislature, subject to the approval of the voters, was the creation of a 40 year time bar, similar to a statute of limitations. Sen.Conc.Res. No. 3023 (1981), Assemb.Conc.Res. No. 3037 (1981). The amendment sought to bar all State claims to land not flowed by the tide for the past 40 years. The prior law, by contrast, subjected lands to the State's claim no matter how ancient the tidal flow over that parcel may have been, or put differently, no matter how long the land had been dry. The amendment did, however, give the State one year from the date of its adoption (November 3, 1981) to make claims to lands not flowed by tides during the past 40 years. Thus, no 40-year bar could be asserted against claims made by November 3, 1982, while any claim thereafter asserted by the State would be subject to the bar.
A significant portion of the parcels potentially subject to such State claims have apparently been free of tidal flow for more than 40 years. Therefore, the obvious benefit to landowners, assuming no claim is made against their land during the one-year period, is that their ownership of the land as a practical matter would be perfected.
The amendment seems fair to both sides since by its terms it does not take anything away from the State but simply requires the State to act expeditiously. However, there were those,
including the Governor, who deemed it manifestly unfair. In their view, it was a practical impossibility for the State to assert its claims within the one-year period provided in the amendment. The technological complexities of mapping the area subject to State claims have been before this Court on several occasions. See, e.g., Newark v. Natural Resource Council, supra, 82 N.J. at 535-36. The contention of those involved with such mapping is that a very substantial portion of it could not possibly be completed within the one-year period because of the nature of the task as well as the lack of adequate manpower and resources to accomplish it in so short a time. Joint Hearings on Sen. Conc. Res. 3023 before the Sen. Judiciary Comm. and Assemb. Judiciary, Law, Public Safety and Defense Comm. 2, 7-10 (1981) (hereinafter cited as "Joint Hearings"). Proponents of the amendment point to the 11 years of prior mapping efforts as evidence that more than enough time has already been allowed, while mapping technicians cite the same as proof of the enormous difficulties involved and the inadequacy of allowing only one more year to complete the job. Id. at 13.
Those opposing the amendment asserted that something more was involved than simply defeating State "claims of ownership" that might otherwise have succeeded. Their view was that the amendment would inevitably have the effect of taking from the State that which it owned and turning it over to private interests, namely, those who were the record owners of the property. Id. at 7-9. Emphasizing the historical doctrine of absolute state ownership of lands that were once flowed by the tide, the opponents claimed no other state had ever attempted to give away its land. Id. at 8-9, 14-15. From their point of view not only was the one-year period too short, but the 40-year period not long enough. Id.
A further objection was raised based on the special relationship between riparian lands and the public school fund. Pursuant to N.J.Const. (1947), Art. VIII, § IV, par. 2, and N.J.S.A. 18A:56-1 et seq., all riparian lands owned by the State or the proceeds from their sale, as well as the income resulting from
such ownership or proceeds, are irrevocably pledged to a perpetual fund for the support of public schools. It was argued that this fund, rather than the general treasury of the State, would be the victim of the proposed amendment. Assembly Hearings, supra, at 7-8.
Finally, the supporters and opponents of the amendment probably differed on a more fundamental question, the fairness of the doctrine itself. To those opposing the amendment, it was unfair to take away from the State that which the law said the State owned. To those who supported the amendment it was unfair in the first place ever to have said that simply because the tides flowed over a particular piece of land, the State should be deemed its owner. Joint Hearings, supra, at 8-10, 14-15.
The amendment approved for submission to the voters was as follows:
No lands that were formerly tidal flowed, but which have not been tidal flowed at any time for a period of 40 years, shall be deemed riparian lands, or lands subject to a riparian claim, and the passage of that period shall be a good and sufficient bar to any such claim, unless during that period the State has specifically defined and asserted such a claim pursuant to law. This section shall apply to lands which have not been tidal flowed at any time during the 40 years immediately preceding adoption of this amendment with respect to any claim not specifically defined and asserted by the State within 1 year of the adoption of this amendment.
The form of the public question to be submitted to the voters was, as is customary, also set forth in the legislation, presumably pursuant to N.J.S.A. 19:3-6. The question read as follows:
Do you approve the amendment to Article VIII of the Constitution adding a new Section V and paragraph 1 thereto, requiring that lands shall have been tidal flowed within the last 40 years to be deemed riparian lands subject to State claims, and barring State claims not defined and asserted by law within that period?
Although the applicable statute, N.J.S.A. 19:3-6, appears to mandate "a brief statement interpreting" the public question where, as here, it concerns an amendment to the State Constitution, the Legislature made no provision for such interpretive
statement. The statute proposing the amendment simply set forth the amendment itself, the public question, and nothing else. Under those circumstances, N.J.S.A. 19:3-6 also provides:
In [the] 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 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.
The Attorney General and Secretary of State concluded that an interpretive statement was needed to inform the voters of the true purpose of the public question and, as permitted by the aforesaid statute, formulated the following statement to be added to the public question:
Land now or formerly flowed by the tide belongs to the people of this State. If these public lands are sold by the State, the monies received are placed in a fund to support public education for all schools in the State. The State has been locating and mapping these lands but the process has not been completed.
Adoption of this amendment would require that the State establish any claims within a one year period to lands not flowed by the tides during the past 40 years or the public's claim to that land would be lost without any compensation whatsoever to the school fund on behalf of public education.
This statement was not the first proposed by the Attorney General's office. Representatives of that office had bitterly fought the adoption of the proposed amendment by the Legislature, had appeared at public hearings voicing their opposition thereto, and had issued several statements to the press setting forth their reasons for their position. Their opposition was intense, and the controversy heated. See supra at 5-7; Atlantic City Press, June 26, ...