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Joshua Berry, Tom Crone, Elizabeth Holzman, Don Choyce, and Robbie v. Rosemary Dijosie

August 7, 2012

JOSHUA BERRY, TOM CRONE, ELIZABETH HOLZMAN, DON CHOYCE, AND ROBBIE TRAYLOR (COMMITTEE OF PETITIONERS), PLAINTIFFS-APPELLANTS,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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