JOY DESANCTIS; MICHAEL SEEBECK; PATRICIA COREA; NOREEN DEAN and JAMES BEAN, Plaintiffs-Respondents,
BOROUGH OF BELMAR; MAYOR & COUNCIL OF THE BOROUGH OF BELMAR; COLLEEN CONNELLY, Borough Administrator of the Borough of Belmar; APRIL CLAUDIO, Municipal Clerk of the Borough of Belmar; and CHRISTINE GIORDANO HANLON, Monmouth County Clerk, Defendants-Appellants.
March 20, 2018
appeal from Superior Court of New Jersey, Law Division,
Monmouth County, Docket No. L-3550-15.
William W. Northgrave argued the cause for appellants
(McManimon, Scotland & Baumann, LLC, attorneys; William
W. Northgrave, Ted Del Guercio, III, and Frances E. Barto, on
Kenneth E. Pringle argued the cause for respondents (Pringle
Quinn Anzano, PC, attorneys; Kenneth E. Pringle, of counsel
and on the brief; Denise M. O'Hara, on the brief).
Judges Fasciale, Sumners and Moynihan.
Borough of Belmar, Mayor and Council of the Borough of
Belmar, Borough Administrator Colleen Connolly, and Municipal
Clerk April Claudio (collectively defendants) appeal from the
Law Division judgments entered against them.
Mayor and Council of Belmar adopted Ordinance 2015-25 on July
7, 2015, appropriating $4.1 million for the construction of
the Fifth Avenue/Taylor Pavilion and authorizing the issuance
of bonds and notes totaling $3, 895, 000 to finance part of
the construction. After Belmar voters filed a protest
petition pursuant to N.J.S.A. 40:49-27 seeking a
referendum on the ordinance, the Mayor and Council approved
Resolution 2015-159 on August 18, 2015, authorizing the
placement of the referendum on the November 3, 2015 ballot.
The resolution provided in part:
Section 3. [The General] election shall have a referendum on
the Ordinance. In accordance with N.J.S.A. 40:49-10, the
question shall be put to the voters as follows:
"To vote upon the public question printed below if in
favor thereof mark a cross (x) or plus () in the square at
the left of the word YES, and if opposed thereto mark a cross
(x) or plus () in the square at the left of the word NO.
[ ] YES Shall an ordinance of the Mayor and Borough Council
of the Borough of Belmar entitled 'Ordinance 2015-25,
Bond Ordinance Providing for the
[ ] NO Construction of the Fifth Avenue Pavilion in and by
the Borough of Belmar, in the County of Monmouth, NewJersey,
Appropriating $4, 100, 000Therefor and Authorizing the
Issuance of $3, 895, 000 Bonds or Notes of the Borough to
Finance Part of the Cost Thereof'; finally adopted on
July 7, 2015, be ratified?"
Section 4. The Clerk is hereby authorized and directed to
submit this resolution to the county clerk so the process of
placing a referendum on a ballot can begin.
County Clerk received the resolution and public question on
August 19, 2015.
interpretive statement of the ordinance was not initially
included in the passed resolution, although the Borough
Administrator testified before the trial court that both she
and the Mayor and Council informed a resident at the August
18 meeting that one would be prepared.The Borough
also testified that, after "[i]ndividual members of
Council spoke to [her] one-on-one after that meeting, again
reiterating their desire that there would be an explanatory
statement, " she drafted the interpretive statement and
"circulated it" to the Borough Attorney, Borough
Clerk and Mayor. She submitted the interpretive statement -
never voted on by the Mayor and Council - which was received
by the County Clerk on August 28, 2015; it read:
This Ordinance provides for the reconstruction of the
5th Avenue Pavilion, also known as Taylor
Pavilion, destroyed by Superstorm Sandy. The pavilion will be
one-story and have the same functions and footprint as the
prior building. This Ordinance enables the Borough of Belmar
to finance the project while obtaining reimbursement from the
Federal Emergency Management Agency (FEMA). The short term
borrowing is expected to be repaid between 24 to 36 months.
This Ordinance was unanimously approved by Belmar Mayor and
Council on July 7, 2015.
DeSanctis and Bean first learned of the interpretive
statement on September 9, 2 015; that day Bean expressed to
the County Clerk his concern about information in the
interpretive statement. The County Clerk replied to him on
September 17 that she did "not believe there is any
legal recourse at this point as to the explanation [in the
interpretive statement] in terms of changing the
ballot"; the County Clerk mailed those ballots to the
public the next day.
filed suit on September 22, 2015 seeking judgment declaring
the interpretive statement invalid because it was never voted
on by the Mayor and Council, thereby depriving plaintiffs and
the public an opportunity to comment on and object to its
content, which contained "inaccurate, misleading and
extraneous information," presenting another ground for
invalidation. They also sought removal of the interpretive
statement - in whole or part - from the ballot; and a
determination of their claim under the New Jersey Civil
Rights Act (CRA), N.J.S.A. 10:6-1 to -2, including a request
for attorneys' fees and costs. We perpend Judge Katie A.
Gummer's rulings on these issues, which arise from a
series of orders that: (1) held the interpretive statement
invalid because it was not submitted to the Mayor and Council
for resolution and no such resolution was made, and because
it was misleading and contained extraneous information
intended to influence - not inform - voters; (2) held
defendants violated the CRA by depriving plaintiffs a free
and fair election, thus entitling plaintiffs to
attorneys' fees and costs; and (3) awarded attorneys'
fees and costs and prohibited payment from the Borough of
Belmar's Beach Utility Fund.
Gummer found persuasive the holding in Town of Harrison
Board of Education v. Netchert, 439 N.J.Super. 164, 186
(Law Div. 2014), and adopted that court's conclusion that
an interpretive statement submitted to a county clerk without
a resolution by the borough council was invalid. Echoing that
holding, which the judge found "well established and
consistent with the longstanding tradition of our State and
our Country to ensure fairness of our election system,"
she declared the Belmar interpretive statement invalid. As
plaintiffs note in their merits brief, the Netchert
court "did not precisely articulate the rationale for
[its] holding that [interpretive] statements that are not
required by N.J.S.A. 19:3-6 must be adopted by
resolution." We review questions of statutory
interpretation de novo. Tumpson v. Farina, 218 N.J.
450, 467 (2014).
follow the well-trod trail of statutory interpretation:
In construing any statute, we must give words "their
ordinary meaning and significance," recognizing that
generally the statutory language is "the best indicator
of [the Legislature's] intent." DiProspero v.
Penn, 183 N.J. 477, 492 (2005); see also
N.J.S.A. 1:1-1 (stating that customarily "words and
phrases shall be read and construed with their context, and
shall . . . be given their generally accepted
meaning").Each statutory provision must be viewed not in
isolation but "in relation to other constituent parts so
that a sensible meaning may be given to the whole of the
legislative scheme." Wilson ex rel. Manzano v. City
of Jersey City, 209 N.J. 558, 572 (2012). We will not
presume that the Legislature intended a result different from
what is indicated by the plain language or add a
qualification to a statute that the Legislature chose to
omit. DiProspero, 183 N.J. at 493.
On the other hand, if a plain reading of the statutory
language is ambiguous, suggesting "more than one
plausible interpretation," or leads to an absurd result,
then we may look to extrinsic evidence, such as legislative
history, committee reports, and contemporaneous construction
in search of the Legislature's intent. Id. at
[Tumpson, 218 N.J. at 467-68 (alterations in
Legislature provided, in N.J.S.A. 19:3-6, for both the
mandatory and permissive inclusion of an interpretive
Any public question voted upon at an election shall be
presented in simple language that can be easily understood by
the voter. The printed phrasing of said question on the
ballots shall clearly set forth the true purpose of the
matter being voted upon. Where the question concerns any
amendment to the State Constitution, or any act or statute or
other legal titles of any nature, the printed phrasing on the
ballots shall include a brief statement interpreting same. In
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 interpretive statement here is not mandated because the
public question does not concern a constitutional matter, the
discrete treatment accorded ...