August 7, 2012
JOSHUA BERRY, TOM CRONE, ELIZABETH HOLZMAN, DON CHOYCE, AND ROBBIE TRAYLOR (COMMITTEE OF PETITIONERS), PLAINTIFFS-APPELLANTS,
ROSEMARY DIJOSIE, IN HER CAPACITY AS THE CLERK OF THE TOWNSHIP OF GLOUCESTER, DEFENDANT-RESPONDENT, AND JOANN STALLWORTH-HOLMES, JOHN HOLMES, CRYSTAL COOPER, RAYMOND LOWE AND ANN MARIE LASH, DEFENDANTS/INTERVENORS-RESPONDENTS.*FN1
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1876-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued August 3, 2012 -
Before Judges Sabatino, Espinosa, and Kennedy.
This election matter comes before us on an emergent basis for review of the trial court's decision invalidating certain voter signatures provided in support of a municipal ordinance initiative pursuant to N.J.S.A. 40:69A-184 to -196. Plaintiffs are the five members of a committee sponsoring the initiative, which seeks to have a proposed ordinance for the Township of Gloucester ("the Township") placed on the ballot in the November 2012 General Election. Defendant Rosemary DiJosie is the Township's municipal clerk, who rejected the petitions supporting the initiative because, in her assessment, the petitions and the materials accompanying them were flawed in various respects.
The pivotal and narrow legal question presented to us is whether the municipal clerk improperly rejected the corrective affidavits of persons who had circulated the petitions to voters. The corrective affidavits were submitted to the clerk in an effort to cure identified notarization deficiencies in the circulator affidavits initially provided by plaintiffs to the municipal clerk with the original signed petitions. The trial court sustained the municipal clerk's rejection of the corrective affidavits and the associated voter signatures. For the reasons that follow, we affirm the trial court's ruling.
The facts pertinent to the matters before us were presented through written submissions to the trial court and were not the subject of a plenary hearing with witnesses.*fn2 Before we discuss those facts, it is useful to set forth the applicable framework for municipal initiative petitions under N.J.S.A. 40:69A-184 to -196.
The Township is organized under the Optional Municipal Charter Law, N.J.S.A. 40:69A-1 to -210, commonly known as the Faulkner Act. Among other things, the law enables residents in such municipalities, through a process of initiative, to propose ordinances for consideration by the local electorate. See N.J.S.A. 40:69A-184; cf. In re Referendum Petition to Repeal Ordinance 04-75, 192 N.J. 446, 459 (2007) (involving a referendum, as opposed to an initiative). The initiative process, like the referendum process, is designed to act as "a check on the exercise of local legislative power, fostering citizen involvement in the political affairs of the community." In re Ordinance 04-75, supra, 192 N.J. at 459. Subject to certain exceptions not applicable here, the initiative process confers upon the voters of a municipality the authority to "propose any ordinance and  adopt or reject the same at the polls[.]" N.J.S.A. 40:69A-184.
The initiative process involves several steps, which need not be described fully here. Briefly, any five registered voters within the municipality may organize themselves into a Committee of Petitioners. N.J.S.A. 40:69A-186. The Committee is responsible for circulating a petition, which explains the proposed ordinance to registered voters within the municipality. Ibid. The Committee also must obtain a sufficient number of voter signatures to require that the municipality place the proposed ordinance on the ballot. The required number of signatures is calculated as a percentage of the votes cast in that municipality in the last election for members of the General Assembly. N.J.S.A. 40:69A-184. In the present case, the parties agree that the applicable number of necessary signatures is 1047.
The municipal clerk is obligated to determine within twenty days of submission whether "each paper of the petition has a proper statement of the circulator [of the petition] and whether the petition is signed by a sufficient number of the qualified voters." N.J.S.A. 40:69A-187. After determining whether the petition meets these statutory requirements, the municipal clerk must certify that determination to the municipal council for consideration at its next regular meeting. Ibid. If the petition is properly supported, the municipal clerk shall submit it to the council "without delay." N.J.S.A. 40:69A-190.
An initiative ordinance submitted to the municipal council "shall be deemed to have had [its] first reading and provision shall be made for a public hearing." Ibid. If the council fails to pass the proposed ordinance, or a substantial equivalent, within twenty days, the clerk must submit it to the voters at the next general or regular municipal election, subject to certain time limitations. N.J.S.A. 40:69A-191; N.J.S.A. 40:69A-192.
The pivotal issue in this appeal concerns whether plaintiffs' petitions and the supporting papers conformed -- as presented to the municipal clerk -- with the following requirements spelled out in N.J.S.A. 40:69A-186:
All petition papers circulated for the purposes of an initiative or referendum shall be uniform in size and style. Initiative petition papers shall contain the full text of the proposed ordinance. The signatures to initiative or referendum petitions need not all be appended to one paper, but to each separate petition there shall be attached a statement of the circulator thereof as provided by this section. Each signer of any such petition paper shall sign his name in ink or indelible pencil and shall indicate after his name his place of residence by street and number, or other description sufficient to identify the place. There shall appear on each petition paper the names and addresses of five voters, designated as the Committee of the Petitioners, who shall be regarded as responsible for the circulation and filing of the petition and for its possible withdrawal as hereinafter provided. Attached to each separate petition paper there shall be an affidavit of the circulator thereof that he, and he only, personally circulated the foregoing paper, that all the signatures appended thereto were made in his presence, and that he believes them to be the genuine signatures of the persons whose names they purport to be.
These requirements in Section 186 have been designed to provide the voters who are asked to sign such petitions with information about the identities of the sponsors. The requirements also serve to hold the petition sponsors accountable, as agents of the initiative process. See Hamilton Twp. Taxpayers' Ass'n. v. Warwick, 180 N.J. Super. 243, 247 (App. Div.), certif. denied, 88 N.J. 490 (1981).
The present case involves an initiative effort by plaintiffs Joshua Berry, Tom Crone, Elizabeth Holzman, Don Choyce, and Robbie Traylor, all of whom are registered voters in the Township and who collectively comprise the Committee of Petitioners ("the Committee"). In July 2011, plaintiffs began circulating within the Township an initiative petition seeking to adopt an ordinance to eradicate so-called "pay-to-play" practices that may tie political campaign contributions to the procurement of municipal contracts. The proposed ordinance is apparently modeled after similar ordinances enacted by numerous other New Jersey municipalities.*fn3
On February 13, 2012, plaintiffs filed the initiative petitions and various supporting documents with DiJosie in her capacity as the Township's municipal clerk. The petition was supported by about 1250 signatures, exceeding the 1047 signatures that were required. After reviewing the petition and the accompanying materials, the clerk determined that a number of signatures were invalid for various reasons, which reduced the number of valid signatures below the necessary 1047 threshold.
One of the reasons cited by the municipal clerk for rejecting some of the signatures was the fact that several of the affidavits signed by the petition circulators had been notarized in New Jersey by a notary licensed in Pennsylvania. Pursuant to N.J.S.A. 40:69A-187, the clerk was obligated to notify plaintiffs of that deficiency. N.J.S.A. 40:69A-188 gives petition sponsors ten days to cure such a deficiency "by filing a supplementary petition upon additional papers signed and filed as provided in [the] case of an original petition." The clerk then has five days to examine the amended petition, determine if it is now sufficient, and so advise the sponsors. Ibid.
Consequently, the municipal clerk sent an e-mail to Crone on March 1, 2012, informing plaintiffs that they needed to correct various deficient circulator affidavits.*fn4 Her e-mail read as follows:
I have been instructed by the solicitor not to release the petitions already in my custody and control.
Please have the notary contact my office, and we will then direct her to the library conference room where the relevant petitions will be available to be properly notarized.
The only inconvenient time will be between the hours of 1:00 pm and 2:00 pm.
Thank you, Roe The clerk, meanwhile, maintained possession of the original petitions and signatures, as advised by the municipal solicitor.
Rather than following the procedure described in the clerk's e-mail and arranging for a New Jersey notary and the circulators to meet at the municipal offices during business hours to sign corrective affidavits, plaintiffs instead followed a different curative procedure. They contend that this alternative procedure had been previously allowed in an initiative matter in 2001 in Hoboken.*fn5 Specifically, plaintiffs assert that they gathered the circulators in the presence of a notary at Berry's residence, where photocopies of the original petitions were located. According to Berry's certification filed in this litigation, the petitions were each cross-referenced to the corrective affidavits with a "tracking number," which corresponded to the same number on the original petition on file with the clerk. The circulators reportedly signed the corrective affidavits in the presence of a New Jersey notary. Plaintiffs then presented the corrective and notarized affidavits to the clerk on March 9, 2012, within the ten-day statutory cure period.
These procedures attempting to cure the deficiency were described in a certification by Berry as follows:
18. When we notarized petitions during the correction period that had an "out of jurisdiction" notary, we followed a similar process of having a notary at my house. I had copies of the original petitions present so each circulator and the notary could be clear as to which petition they were correcting the notarization. Before each circulator corrected their circulator affidavit, they clearly marked the corrected circulator affidavit sheet with the corresponding tracking number for the petition it was. Each circulator did this in my presence and in the presence of the notary.
19. As part of reviewing our copies of the original petition papers, Tom Crone and I discovered two petitions with deficient notarizations that the Clerk (in accordance with the advice of Mr. Carlamere) did not find to be deficient. Nonetheless, I had the relevant circulator correct those affidavits as well. We could not have made these additional corrections if we did not have copies of the original petition papers with us when correcting the affidavits that she did find deficient.
20. On March 9th, Tom Crone and I submitted the corrected petition papers to Gloucester Township Clerk Roe DiJosie at the municipal building. When we handed her the packet, she called Solicitor Carlamere for instructions on how to proceed. Immediately after her conversation with the solicitor, Ms. DiJosie accepted the amended circulator affidavits and the new petition papers with additional signatures from us.
21. I personally witnessed Ms. DiJosie take each of the corrected affidavits and mate them to their intended petition through the matching identification numbers on both papers. Neither myself nor Mr. Crone instructed her on which affidavit was meant for which petition paper. It was obvious from the face of the petition papers in her possession and the corrected circulator affidavits that we had just submitted to her.
In her own sworn statement, the municipal clerk described the events relating to these matters as follows:
13. Following my delivery of notice of deficiency, a member of the committee of Petitioners requested that I give back the petitions acknowledged by the Pennsylvania notary. Since the petitions were now part of my certification I believed they could not be released from my possession. I advised the Committee member that the petitions would be set aside for ease of review and that they should be present with a proper Notary Public for signing. They never appeared or responded.
14. The statute affords the Committee of Petitioners ten days to correct noticed deficiencies (N.J.S.A. 40:69A-188).
15. On the tenth day members of the committee appeared at my office with separate sheets (8X11) containing a notary statement, signed and acknowledged, but without attachments. I was instructed by a member of the Committee to take each sheet and attach it to certain original petitions as he instructed. The Notary Public was not present at this time nor was the affiant.
16. I called the Township Attorney who was not in the municipal building and not able to appear in my office. I was advised to accept the 13 sheets of paper and paper clip each as instructed by the Committee member. I did not believe this process was proper and later advised the Committee of Petitioners that I could not certify the petitions as corrected by this method. The petition remained deficient.
17. The Committee of Petitioners objected to the declared deficiency issue of improper circulators and made no attempt to correct the noticed deficiency.
After receiving plaintiffs' corrective affidavits, which lacked any attachments, and obtaining legal advice from the Township solicitor, the clerk rejected them, declaring them non-compliant with the requirements of the statute and with the procedures that she had outlined in her March 1 e-mail.
Plaintiffs subsequently filed a verified complaint and an order to show cause in the Law Division, challenging the municipal clerk's rejection of their petitions. Plaintiffs sought relief under the applicable statutory initiative provisions, arguing that the clerk had arbitrarily and unreasonably imposed procedural requirements not set forth in the statute. They also claimed that the rejection of their petitions violated the New Jersey Civil Rights Act ("CRA"), N.J.S.A. 10:6-2(c). The municipal clerk denied any error on her part, contending that plaintiffs had not properly adhered to the statutory requirements. A third-party complaint was also filed against plaintiffs by various intervenors, who alleged various improprieties in the petition circulation process.*fn6
After considering the parties' written submissions and oral argument on the return date of the order to show cause, the trial court issued various rulings. In some respects not relevant to this appeal, the court agreed with plaintiffs and nullified the clerk's decision to reject certain signatures. In other respects, which are likewise irrelevant to the present appeal, the court sustained the clerk's rejection of other signatures.
As to the pivotal issue now before us on appeal, the trial court ruled that the municipal clerk had acted within her authority in rejecting the corrective affidavits from the circulators and the associated signatures. In an oral opinion, the court agreed with defendant that the curative affidavits were defective. The court observed in this regard as follows:
As to whether the clerk's decision to reject the circulator affidavits which she determined were not properly notarized, was that arbitrary, capricious, and unreasonable? There's no question that the original petitions, or several of the petitions that were notarized by the out-of-state notary were not valid.
The question is whether the subsequent [curative affidavits] that [were] submitted during the cure period were valid? These affidavits were signed, separate, and apart from any other petition. There was no petition attached. They were referenced to the original petitions submitted by -- to the clerk. The attachment of the -- well, whether or not the attachment of the affidavit were selected by Committee members who appeared that day or by the clerk, I don't think is all that determinative. Neither the define [sic], nor the defined [sic] or the notary were present during this time. What was submitted in essence was a blank notary statement.
A notary has a duty to use ordinary or reasonable care in its performance of its function. [Consider] the case cited by plaintiff, [Immerman v. Ostertag, 83 N.J. Super. 364 (App. Div. 1964)]. Accordingly, it appears to me that the clerk's decision to disqualify those 205 signatures on the part -- on these petitions was not arbitrary, capricious, or unreasonable. And I will sustain her action there.
Consequently, the court issued an order on June 20, 2012 which, in pertinent part, recited in paragraph 2(b) that the court "affirms the [municipal] [c]lerk's rejection of 205 signatures*fn7
because they appeared on petitions associated with circulator affidavits that were not corrected pursuant to the procedure she prescribed." In paragraph 5 of that same order, the court dismissed plaintiffs' claims under the CRA.
Subsequently, on July 10, 2012, the trial court conducted a plenary hearing on other contested signatures. After that hearing, the court ruled in favor of plaintiffs, denying defendant's and intervenors' requests that additional signatures be deemed invalid, for unrelated reasons that need not concern us here. The trial court entered a final order on July 16, 2012 dismissing plaintiffs' verified complaint.
The net result of the trial court's determinations is to leave plaintiffs short of the 1047 signatures that are needed to place their petition on the local ballot. However, the parties confirmed at oral argument on this appeal, that if, hypothetically, the signatures invalidated by the clerk and the trial court because of defective circulator affidavits were restored, plaintiffs would surpass the necessary 1047 signature threshold.
On appeal, plaintiffs contend that the trial court erred in sustaining the municipal clerk's rejection of the corrective affidavits from the circulators and the related signatures. They seek emergent consideration, representing to us that appellate review must be completed on or before August 17, 2012 in order to have sufficient time to adhere to the statutory deadlines for placing the ordinance on the November 2012 General Election ballot, should they be successful in the appeal. We agreed to hear the matter on an expedited basis and have now considered the briefs and oral arguments of the parties.*fn8
Plaintiffs argue that the trial court erred as a matter of law in upholding the municipal clerk's rejection of the corrective circulator affidavits. They contend that the curative procedures that they chose to follow were adequate under N.J.S.A. 40:69A-186 to -188, maintaining that the corrective affidavits were properly prepared, signed, and affirmed by each appropriate circulator in the presence of an authorized New Jersey notary public. Plaintiffs further argue that they are entitled to judgment on their claims under the CRA.
Defendant argues that the trial court's rulings on these issues were sound and that the court justifiably concluded that she had not misapplied her authority in rejecting the tendered corrective affidavits. Defendant maintains that she acted reasonably in inviting plaintiffs to have a notary and the relevant circulators come to the municipal building to cure the defective affidavits. She further contends that it was reasonable to reject plaintiffs' unilateral attempt to present her with replacement affidavits that were notarized off-site, without any copies of the underlying petitions attached. Furthermore, defendant urges that we affirm the trial court's dismissal of plaintiffs' claims under the CRA because voters' substantive rights were not infringed.
Because this appeal involves questions of law and because the trial court was not presented with any testimony at the June 8, 2012 proceeding and thus did not make any credibility findings, we review the court's decision de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We also bear in mind that, as a general matter, our State's initiative-related laws are to be liberally construed "to encourage public participation in municipal affairs in the face of normal apathy and lethargy in such matters." Narciso v. Worrick, 176 N.J. Super. 315, 319 (App. Div. 1980). Nevertheless, we agree with the trial court that the attempted corrective action unilaterally selected by plaintiffs here to cure the defective circulator affidavits was inadequate under the relevant statutes and was reasonably rejected by the municipal clerk.
Section 186 of the initiative statute explicitly requires that "[a]ttached to each separate petition paper there shall be an affidavit of the circulator thereof that he [or she], and he [or she] only, personally circulated the foregoing paper[.]" N.J.S.A. 40:69A-186 (emphasis added). That provision further requires the circulator's affidavit to attest that "all the signatures appended thereto were made in his [or her] presence, and that he [or she] believes them to be genuine signatures of the persons whose names they purport to be." Ibid.
These provisions are not mere housekeeping formalities. Instead, they are important evidential requirements to assure that the voter signatures and corresponding circulator affidavits are true and that the signatures have not been procured through fraud, misrepresentation, or mistake. Hence, when circulator affidavits are submitted in the ordinary course to the municipal clerk, they must be -- as the statute prescribes -- "[a]ttached to" each separate petition with the voter signatures "appended thereto."*fn9 See N.J.S.A. 40:69A-186.
We appreciate that when plaintiffs were duly informed that some of the circulator affidavits had been defectively witnessed by a Pennsylvania notary in New Jersey, the municipal clerk declined to return the original petitions to them. Instead, as plaintiffs acknowledge, the municipal clerk appropriately kept the original petitions for safekeeping. Mindful of this practical circumstance, the municipal clerk reasonably advised plaintiffs that they could have an authorized notary come to her office during business hours and thereby have the circulator affidavits corrected in the presence of the original petitions.
Plaintiffs disregarded the municipal clerk's invitation and instead chose a different course. According to their submissions in this litigation, plaintiffs convened a meeting of the circulators with a New Jersey notary at Berry's residence. Plaintiffs contend that they had the affidavits signed while photocopies of the corresponding petitions were present on-site. However, duplicates of those photocopies were inexplicably not attached to the corrective affidavits provided to the municipal clerk on March 9. Instead, plaintiffs implemented a self-styled process of placing a petition number at the top of each affidavit.
Plaintiffs did not consult the municipal clerk in advance to find out if their chosen alternative procedure would be acceptable. Nor did they provide the municipal clerk -- or for that matter, the trial judge -- with a certification from the notary, a neutral participant, confirming that the affidavit-signing procedures described by plaintiffs took place as they have represented and that each of the photocopied petitions were indeed shown to the circulators as they signed the corresponding affidavits. Nor did plaintiffs provide the clerk with a certification, such as the one ultimately supplied by Berry to the trial court, attesting to the numerical matching process that had been undertaken.
Under the circumstances presented, the municipal clerk did not have to take it on faith that the "foregoing paper" referred to in each corrective affidavit was a copy of the specific petition that the circulator had actually presented to the voters who signed it. We also discern that plaintiffs would not have been unduly burdened by simply attaching duplicates of each photocopied petition to the corresponding affidavits.
As defense counsel acknowledges on appeal, the process offered in the municipal clerk's March 1 e-mail was not the only legal means to cure the affidavit deficiencies. We need not address all of those potential alternatives here. Although plaintiffs were not limited to the specific procedure offered by defendant, they were required to employ a procedure that conformed to the statutory requirements. They pursued their own chosen curative method, without consulting the clerk, at their peril. The method chosen shifted responsibility to the clerk to match up numbers on corrective affidavits with the original petitions on files in the absence of any personal knowledge on her part. The statute requires the circulator to attest "that he [or she], and he [or she] only, personally circulated the foregoing paper, that all the signatures appended thereto were made in his [or her] presence, and that he [or she] believes" the signatures to be genuine. N.J.S.A. 40:69A-186. The statute does not provide for the shifting of such responsibility from the circulators to the clerk in the manner chosen by plaintiffs.
Moreover, there is no assurance that the number at the top of each affidavit accurately memorializes what each circulator was actually shown in the presence of the New Jersey notary. That evidential concern is why the statute explicitly requires the petitions to be "[a]ttached" to each affidavit and the voter signatures "appended thereto" to have been made in the circulator's presence. Ibid.
The evidential concern is not, as plaintiffs have argued, confined to the presentation of the original petitions with the flawed affidavits. Although no additional petitions and voter signatures could have been improperly slipped in with the corrective affidavits after the original petitions had been filed with the clerk, and no alterations or substitutions could have been made, several issues nonetheless persist: whether the circulators properly verified that the original petitions and signatures were "personally circulated" by that person; whether "all the signatures appended thereto were made in his [or her] presence"; and whether "he [or she] believes them to be the genuine signatures of the persons whose names they purport to be." N.J.S.A. 40:69A-186.
The required attestation from the circulators cannot, in essence, be "piggybacked" on the affidavits witnessed by the Pennsylvania notary because those initial affidavits were a legal nullity. See Immerman, supra, 83 N.J. Super. at 371-72 (noting the solemn importance of the notary's function). We agree with plaintiffs that the notary does not need to have personal knowledge of the contents of the petitions and signatures, which are required by Section 186 to be attached and appended to the circulator affidavits. It was nonetheless important that the notary's function be performed in a proper setting conforming to the statute, and that the municipal clerk be presented with adequate proof that the statutory requirements were fulfilled.
We do not read N.J.S.A. 40:69A-186, as plaintiffs do, to authorize the circulators to execute affidavits without the originals or copies of the petitions and signatures being simultaneously attached, and to allow those integral documents to be combined only at the time of filing with the municipal clerk. The words of the statute do not authorize such a procedure, one which could readily invite mischief in the "matching" process.*fn10
We also are not bound by the trial court's order in the unreported Hudson County litigation in Tumpson if, in fact, the procedure utilized by plaintiffs was implemented there. See R. 1:36-3 (noting that unpublished rulings are not precedential).
As plaintiffs acknowledge, the applicable standard of review is whether the municipal clerk's rejection of the corrective affidavits was arbitrary or capricious, or clearly erroneous under the law. "The judicial role is . . . limited to a review of the clerk's actions and to intervene only when those actions appear to be arbitrary and unreasonable, as demonstrated by the evidence and the applicable law." D'Ascensio v. Benjamin, 142 N.J. Super. 52, 55 (App. Div.) (applying that review standard in a public referendum context), certif. denied, 71 N.J. 526 (1976). "Unless arbitrary abuse of power is evident, the discretion of the clerk controls, regardless of the methods or techniques utilized by him [or her] in achieving the result." Ibid.
We concur with the trial court that the municipal clerk's decision in this case to reject the corrective affidavits was neither arbitrary nor capricious. Even if, hypothetically, a more stringent standard of review were applied to the clerk's actions, we see no reason to set aside the trial court's order under the circumstances presented.*fn11 The evidential requirements of Section 186 must be scrupulously observed. The requirements are not onerous. It was not unreasonable to insist that plaintiffs adhere to them.
We also agree with the trial court that plaintiffs' claims under the CRA lack merit, as there has been no demonstration of the wrongful deprivation of a constitutional or statutory entitlement. See Filqueiras v. Newark Pub. Schs., ___ N.J. Super. ___ (App. Div. 2012) (slip op. at 26-27) (noting that the CRA is patterned after 42 U.S.C.A. § 1983 and that to assert a CRA claim, a plaintiff must prove egregious action on the part of the government). In addition, plaintiffs agree that their CRA claims are dependent upon obtaining a reversal of the trial court's ruling concerning the rejected affidavits. Because we have affirmed that ruling, the CRA claims were correctly dismissed.
For these reasons, we affirm paragraphs 2(b) and 5 of the trial court's June 20, 2012 order. Plaintiffs' appeal is dismissed and their pending motion for emergent relief (M-7071-11) is denied.