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Hernandez-Turner v. Adams


August 2, 2007


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-1085-06.

Per curiam.


Submitted May 23, 2007

Before Judges A. A. Rodríguez and Sabatino.

Rosemary Adams, the City Clerk of Atlantic City and Atlantic City (collectively "the City"), appeal from the July 13, 2006 order, granting summary judgment in an Action in Lieu of Prerogative Writs in favor of Iris Hernandez-Turner and Jerry Hannan (plaintiffs). We affirm substantially for the same reasons expressed by Judge Valerie H. Armstrong in her July 13, 2006 oral and April 20, 2006 written decisions.

These are the salient facts. Plaintiffs circulated a petition objecting to the recent passage of two municipal ordinances (Ordinances 112 and 113 of 2006) and seeking a ballot question on both ordinances. Ordinance 112 is a general ordinance, providing for a full-time City Council President and setting the hours required for that position. Ordinance 113 is a salary ordinance, providing for pay raises for the Council President, the Business Administrator, the Solicitor and various other municipal employees and Council members.

The petition, which was signed by 1,526 persons, was sent to the City Clerk's office. Adams rejected the petition for filing and sent a letter detailing the following insufficiencies:

In the third paragraph of the petition, your petition states that it is a "citizens' ordinance." Pursuant to N.J.S.A. 40:69A-186, "initiative petition papers shall contain the full text of the proposed ordinance." You have failed to attach any proposed ordinance, as required.

Further, your petition relating to various city ordinances contains 1,526 signatures. By law, specifically N.J.S.A. 40:69A-185, if your petition is a referendum petition, it requires 9,670 registered voters' signatures which represents 15% of the total votes cast at the last election wherein the General Assembly was elected.

Additionally, your petition contains several other procedural deficiencies, including but not limited to placing two ordinances on one petition. Specifically, you are seeking to repeal Ordinance #112 as it would establish a yearly salary for Council President from $30,000 to $60,000. Ordinance #112 does not address the salary of Council President. You are also seeking the repeal of "Ordinance #113 of 2006, which intends to raise the salaries of all members of City Council by more than 26% with additional salary increases scheduled in the years 2007, 2008 & 2009 and would increase the salaries of all Department Directors to more than $120,000 per year with additional increases in years 2007, 2008 & 2009". Ordinance 113 does not seek such actions with regard to all Department Directors and does not address the years you have specified. It is impossible for City Council to repeal the ordinances that you have described in your petition, as the petition does not reflect ordinances that are currently in existence.

Pursuant to N.J.S.A. 40:69A-188, you may amend your petitions to supplement the signatures with the appropriate number of signatures and may amend the other procedural defects as specified. Any such amendment to your petitions must be filed with the City Clerk's Office within 10 days of your receipt of this notification. No amendments will be accepted after that time. Please be guided accordingly.

Dissatisfied with this response, plaintiffs filed the Action in Lieu of Prerogative Writs, alleging that because their petition was actually a salary challenge, it should have been reviewed according to the less stringent requirements of N.J.S.A. 40A:9-165, rather than the more rigorous standards of the general referendum statute, N.J.S.A. 40:69A-185. The City answered alleging that Ordinance 112 was not a salary ordinance within the purview of N.J.S.A. 40A:9-165 and moved to dismiss the action on the grounds that plaintiffs had failed to exhaust administrative remedies. Judge Armstrong denied the motion to dismiss. She issued a comprehensive written opinion on April 20, 2006. The City moved for reconsideration. Judge Armstrong denied reconsideration.

Plaintiffs moved for partial summary judgment and to proceed in a summary manner. By order dated July 13, 2006, the judge: (1) declared that the petition was valid pursuant to N.J.S.A. 40A:9-165; (2) ordered Adams to accept the petition for filing; (3) ordered that Ordinance 113 of 2006 "shall remain inoperative unless and until a proposition for the ratification thereof shall be adopted at an election by a majority of the voters voting on said proposition at the next General Election of November 7, 2006"; and (4) awarded $250 in costs to plaintiffs. The City appealed.

During the pendency of the appeal, the City Council passed a new ordinance that repealed Ordinance 112 and partially repealed Ordinance 113. Although no formal motion was filed, the City agreed with plaintiffs' counsel to await our decision on appeal before placing the issue on the ballot. However, plaintiffs replaced their counsel and moved to enforce litigants rights to place the question on the November 2006 General Election Ballot. The City moved before Judge Armstrong unsuccessfully for a stay of the July 13, 2006 order. The City sought a stay from us on an emergent basis. We denied this request.*fn1 At the November 2006 General Election, the proposition challenging the salary ordinance was approved by a substantial margin.

On appeal, the City contends that the judge erred by ruling that the City Clerk incorrectly "applied N.J.S.A. 40A:9-165 to [plaintiffs'] petition when the petition included an ordinance beyond the scope of said statute." We disagree.

The general referendum statute, N.J.S.A. 40:69A-185, provides in pertinent part:

The voters shall also have the power of referendum which is the power to approve or reject at the polls any ordinance submitted by the council to the voters or any ordinance passed by the council, against which a referendum petition has been filed as herein provided. [N.J.S.A. 40:69A-185.]

The statute provides that any ordinance shall be suspended from taking effect, if a petition protesting against the passage of the ordinance is filed with the City, signed by fifteen percent of the legal voters of the municipality that cast votes at the last general election. Ibid.

An ordinance that increases the salaries, wages or compensation of elective or managerial officials can also be challenged. N.J.S.A. 40A:69-165. If a petition, signed by at least five percent of the registered voters of the municipality protesting passage of the ordinance, is presented to the governing body, the "ordinance shall remain inoperative unless and until a proposition for the ratification [of the salary ordinance] thereof shall be adopted at an election by a majority of the voters voting on said proposition." Ibid. In New Jersey, "[w]here the right of referendum is statutorily granted, [it] . . . is to be liberally construed to promote, where appropriate, its beneficial effects." In re Referendum Petition to Repeal Ordinance 04-75, 388 N.J. Super. 405, 412 (App. Div. 2006) (quoting D'Ercole v. Mayor and Council of the Borough of Norwood, 198 N.J. Super. 531, 543 (App. Div. 1984)). Further, "the legislative grant of the referendum power should be liberally construed in order to encourage public participation in municipal affairs in the face of normal apathy and lethargy in such matters." Tumpson v. Farina, 240 N.J. Super. 346, 350 (App. Div.), aff'd by, 120 N.J. 55 (1990) (quoting Narciso v. Worrick, 176 N.J. Super. 315, 319 (App. Div. 1980)) (internal citations omitted).

However, the Supreme Court has recognized the need for a balance; weighing the people's interest against the City's interest in being free to legislate. Tumpson, supra, 120 N.J. at 59. "In many situations it is difficult to determine how far the limitations [on initiative and referendum] should go. The courts must draw the line in these situations and in doing so must balance two interests-the protection of city government from harassment as against the benefits of direct legislation by the people." Ibid. (quoting Cuprowski v. City of Jersey City, 101 N.J. Super. 15 (Law Div.), aff'd o.b., 103 N.J. Super. 247 (App. Div.), certif. denied, 53 N.J. 80 (1968)).

Both N.J.S.A. 40A:9-165, the salary referendum provision, and N.J.S.A. 40:69A-185, the general referendum provision, relate to the same or similar subject matter. "The statutes may thus be construed in harmony by regarding N.J.S.A. 40:69A-185 as dealing with ordinances in general, with the exception of salary ordinances which are governed by the provisions of N.J.S.A. 40A:9-165." Lawrence v. Butcher, 130 N.J. Super. 209, 212 (App. Div. 1974); cf. Lettieri v. Governing Body of Bayonne, 168 N.J. Super. 423, 425-26 (Law Div. 1979) (finding that the salary provision in N.J.S.A. 40A:9-165, prevails over the general referendum provisions of N.J.S.A. 40:69A-185). Hence, "the more specific applicability of N.J.S.A. 40A:9-165 to the subject matter of the ordinance brings into play the well recognized principle of statutory construction that the provisions of a specific statute will prevail over a general statute." Stop the Pay Hikes Committee v. Town Council of Irvington, 166 N.J. Super. 197, 205 (Law Div. 1979), aff'd by, 170 N.J. Super. 193 (App. Div. 1979) (citing Kingsley v. Wes Outdoor Advertising Co., 55 N.J. 336, 339 (1970); Goff v. Hunt, 6 N.J. 600 (1951)).

Here, the facts are not in dispute. Therefore, we must review the record to ensure that the judge applied the law correctly. We conclude that she has done so.

First, it is undisputed that petition contained 1,526 signatures. Therefore, the petition contained the required number of signatures to meet the requirements of either N.J.S.A. 40A:9-165 or N.J.S.A. 40:69A-185.*fn2

Second, we agree with Judge Armstrong's adoption of the analysis in Lawrence v. Butcher, 130 N.J. Super. 209 (App. Div. 1974), noting that because N.J.S.A. 40A:9-165 is a more specific statute on point, it should control over N.J.S.A. 40:69A-185, which is more general in nature.

Third, the City contends that Ordinance 112, which pertains to the creation of the full-time position for City Council President, cannot be challenged pursuant to the procedure set by N.J.S.A. 40A:9-165, because it is not a salary ordinance. The City contends that there should have been two petitions separating out the two ordinances. However, the City has repealed Ordinance 112. Therefore, that is not an issue before us. The challenge to Ordinance No. 112 regarding the Council President's hours was mooted by the pre-election repeal of that ordinance. This left open for voter ratification a portion of Ordinance 113.

In summary, we conclude that Judge Armstrong correctly applied N.J.S.A. 40A:9-165. She found that the petition contained the requisite amount of signatures and was valid.

In the alternative, the City contends that even if we were to determine that Judge Armstrong correctly applied N.J.S.A. 40A:9-165, it was reversible error to fail to enforce public policy that dictates that, "persons circulating a petition for referendum or other legislative action must be truthful in the representations made to garner signatures from the public." The City alleges that the petition "contained many blatant false statements which prevented further action by . . . the City Clerk, regardless of any statutory review of the petition." The City alleges that petition was circulated with false information completely misstating the purpose behind the salary ordinance.

In Stop the Pay Hike Committee, supra, 166 N.J. Super. at 197, a similar issue was presented to the trial court. In that case, Irvington argued that a voter's petition was so vague that it misled citizens into signing the petition. The judge found in pertinent part:

[T]he sufficiency of the petition cannot be measured except in its entirety. It is apparent that any voter reading the entire petition was adequately informed that the basic thrust of the petition was to challenge certain wage increases adopted by Irvington Ordinance MC 2549. Certainly, the language is not so misleading as to justify the summary dismissal of this potential referendum. Also, it is well recognized that the right to referendum is a democratic ideal. Moreover, provisions relating to a referendum should be liberally construed so as to effectuate, facilitate and encourage voters to participate in government. [Stop the Pay Hike Committee, supra, 166 N.J. Super. at 207.]

The judge went on to state that, "[i]t is not the policy of our law to frustrate the right of voters to seek democratic redress, as provided for through referendum." Ibid. (citing D'Ascensio v. Benjamin, 137 N.J. Super. 155, 163 (Ch. Div. 1975); Sparta Tp. v. Spillane, 125 N.J. Super. 519, 523 (App. Div. 1973)).

We note that N.J.S.A. 40A:9-165 does not require a petition that objects to a salary ordinance to include the salary ordinance within the body of the petition, or to include a summary of the substance of the ordinance. Therefore, Adams's notice of insufficiency fails on this point.

As Judge Armstrong also noted, the petition was drafted by a lay person, and she attributed the lack of a perfectly worded document as a harmless oversight, due in part to the fact that the intent of the petition was clear. Judge Armstrong went on to state that:

. . . the petition was not perfect worded. However, notwithstanding that fact, the court was persuaded that it was abundantly clear that the voters signing the petition were protesting the various salary increases approved by [Atlantic City] when it enacted Ordinance #113 [Salary Ordinance].

This court has no basis to conclude that plaintiffs "lied" to or intentionally deceived the public. As noted above, notwithstanding the inartful wording of the petition, the court concluded that the intent . . . was sufficiently clear, namely, [plaintiffs] want a proposition for the ratification of the salary increases to be put before the voters.

We find no basis in the record to conclude that the plaintiffs misled the signatories of the petition.


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