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New Jersey State AFL-CIO v. Bergen County Board of Chosen Freeholders

Decided: September 27, 1990.

NEW JERSEY STATE AFL-CIO, LEAGUE OF WOMEN VOTERS OF NEW JERSEY, EDUCATION LAW CENTER, ASSOCIATION FOR CHILDREN OF NEW JERSEY, NEW JERSEY STATE NAACP, NEWARK BRANCH OF THE NAACP, NEW JERSEY COUNCIL OF CHURCHES, ET AL., PLAINTIFFS-APPELLANTS AND CROSS-RESPONDENTS,
v.
BERGEN COUNTY BOARD OF CHOSEN FREEHOLDERS AND BERGEN COUNTY CLERK AND OCEAN COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-RESPONDENTS, AND SOMERSET COUNTY BOARD OF CHOSEN FREEHOLDERS, MONMOUTH COUNTY BOARD OF CHOSEN FREEHOLDERS, AND PASSAIC COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-CROSS-APPELLANTS, AND BURLINGTON COUNTY BOARD OF CHOSEN FREEHOLDERS, ET AL., DEFENDANTS, AND HUNTERDON COUNTY BOARD OF CHOSEN FREEHOLDERS AND BOROUGH OF ROSELAND, INTERVENORS-CROSS-APPELLANTS



On appeal from and on certification to the Superior Court, Appellate Division.

For affirmance in part, reversal in part -- Chief Justice Wilentz, C.J., and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

The issue before the Court is the propriety under N.J.S.A. 19:37-1 of submitting certain public questions to the voters of five counties, Bergen, Monmouth, Ocean, Passaic, and Somerset. The public questions for the proposed non-binding referendum deal with the recently adopted tax and school aid laws -- they seek to determine voter support for their repeal. Necessarily affected, although not before us, are similar public questions that five other counties and numerous municipalities seek to place on the ballot. We hold that all of the proposed questions are impermissible under the statute.

The issue in this case is not whether New Jersey should have a process for non-binding referenda on state issues or whether that process would be in the public interest. Those are issues of governmental policy committed solely to the legislature. Within this scheme, our function is to decide not what is good or wise electoral process but what process the legislature has established. We recognize the strength of the counties' interests and consequent efforts to put these questions on the ballot in order to afford their voters the chance to be heard on this issue. The law, however, does not allow what these counties seek.

The laws of this state, N.J.S.A. 19:37-1, provide a method for municipalities and counties to determine their voters' views on proposed action within their governmental power, i.e., their

views on local governmental issues. The method is through a public question that puts the local issue on the ballot, giving the voters the opportunity to vote yes or no. The statutory language authorizes public questions "pertaining to the government or internal affairs" of the municipality or county. While it is a non-binding referendum -- the municipality or county may act contrary to the vote -- it gives local government the benefit of ascertaining the extent of popular support for a particular course of action.

The laws of this state do not provide any similar method for the State, i.e., the legislature and the governor, to determine its voters' views -- all of the voters of the state -- on proposed action within the State's power, e.g., proposed State legislation. There is no general non-binding referendum law applicable to State governmental powers. Public questions designed to determine statewide voter sentiment on such issues are not authorized by law.

These two facts -- the existence of the non-binding referendum law at the local level and its absence at the State level -- provide the framework for this case. They lead to the proposition, derived from the explicit language of the statute and accepted by all, that the public question on the ballot must relate to a matter within the power of the local government proposing it, something over which it can act, and to the further proposition that the local public question cannot be invoked to accomplish what the law has failed to provide: a method to determine voters' views on State questions, on matters solely within the power of State government.

We recently applied those propositions to the clear-cut issue involved in Board of Chosen Freeholders of Mercer County v. Szaferman, 117 N.J. 94, 563 A.2d 1132 (1989). There the public question sought to be placed on the county ballot to determine its voters' views asked whether the county should pass a resolution advising the legislature to adopt and repeal various laws concerning automobile insurance. Concluding that the

underlying subject matter -- automobile insurance -- was one over which the counties had no power to act, we ruled that such a question could not be submitted to the county voters under N.J.S.A. 19:37-1 for their views, and further that the fact that the county had the unquestioned power to adopt such a resolution, a resolution simply advising the legislature of the counties' position on this State issue, did not transform the counties' lack of substantive power over insurance into an issue within the counties' jurisdiction suitable for a public question.

Three of the public questions before us (Monmouth, Passaic, and Somerset) pose precisely the same legal issue resolved in Szaferman. They would ask the county's voters if the county should adopt a resolution "urging the New Jersey Legislature to repeal" (or "a resolution supporting a repeal of") the recently adopted tax increases and the new school aid law. We note immediately that their only difference with the question involved in Szaferman is that here the legislature is "urged" and there it was "advised." In effect these questions seek county voters' views on matters that all parties concede are committed solely to the state legislature -- income and sales taxes and State aid to local school districts, matters over which the counties have no power whatsoever. The only connection of the counties to the question that is asserted is the same as that in Szaferman: the county does have the power to pass a resolution. It is of no more avail here than in Szaferman, the difference for this purpose between "urging" and "advising" being immaterial. We hold that such public questions may not be placed on the ballot for submission to the counties' voters.

The two other proposed public questions before us are not, in our view, significantly different in terms of the propriety of submitting them to county voters. Their only difference is that instead of asking if the county should urge the legislature to repeal these laws, they ask if the county should seek their repeal through lawsuits or other means, "legislative, legal and administrative." We hold that when the underlying issue is the [121 NJ Page 261] repeal of legislation of statewide applicability, the counties' total lack of power over the subject matter, otherwise fatal to the proposed submission of a public question to the counties' voters, is not cured by asserting the unquestioned county power to sue, to lobby, or to take "other action to repeal such legislation." The basis for our holding is the statute itself and the consistent decisions interpreting it to allow only those matters within the power of the county to be submitted to its voters. State taxes and school aid are not within that category. We note also that to rule otherwise could in effect transform the local non-binding referendum law so that, as in Szaferman, it could be used as a law authorizing a statewide non-binding referendum on State legislation. We deem it likely that if such public questions were permitted, all interested counties and municipalities, instead of asking their voters if they should "advise" the legislature, would ask if they should sue or lobby. As we noted in Szaferman, supra, 117 N.J. at 104, 563 A.2d 1132, in the same context (the public question involved an important statewide legislative issue): "[W]e are confident that the legislature never intended the non-binding-referendum procedure to be used to test public opinion in the abstract or to ascertain the public's views on controversial or timely issues outside the province of the governing body soliciting them." That prohibition against non-binding local referenda on state issues cannot be turned into permission by what may amount to nothing more than a change in the words of the proposed question, a change that leaves the main purpose unaffected: determining voter sentiment on the statewide issue. Such a device would attempt to accomplish that which the legislature has so far failed to permit.*fn1

I.

In July 1990 various laws were passed increasing the State sales and income taxes. L. 1990, c. 40; L. 1990, c. 61. At about the same time the law dealing with State aid to local school districts was substantially revised, L. 1990, c. 52, providing in the future some districts with more aid than before and others, with less. The total tax increase is asserted in the various resolutions of the counties to amount to $2.8 billion per year.

Citizens in various parts of the state have campaigned for the repeal of these laws. Concurrently some school districts, perceiving a future lessening of State aid, have advocated repeal of the new school aid law, as have municipalities and counties, as well as repeal of the increase in taxes. Ranged on the other side are firm supporters of this new legislation.

In July and August of this year, ten counties passed resolutions pursuant to N.J.S.A. 19:37-1 authorizing a public question on the repeal of these laws. ...


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