97 A.3d 719
N.J. Super. Ct. App. Div.2014Background
- Committee of Petitioners (appellants) drafted an initiative ordinance to create a full‑time Director of Law and Paralegal Specialist for Jackson Township and to permit the Township Law Department to provide services to the Board of Education under certain conditions.
- The petition gathered sufficient signatures and was submitted to the Township Council, which declined to adopt the ordinance; the ordinance therefore would be placed on the ballot absent other action.
- Mayor and Council sought declaratory relief before the election, arguing parts of the proposed ordinance (notably the provision authorizing the Board of Education to use Township legal services) conflicted with the Uniform Shared Services and Consolidation Act (USSCA).
- The Law Division held the shared‑services provision (paragraph 1(D)(9)) conflicted with the USSCA and, despite a severability clause in the initiative, declined to sever that provision and order the remainder placed on the ballot; it declared the entire petition void.
- Appellants appealed, arguing (1) the broad severability clause required the valid portions be submitted to voters and (2) courts should not entertain pre‑election substantive challenges to citizen initiatives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre‑election declaratory relief may be sought against an initiative ordinance | Appellants: courts should not hear pre‑election substantive challenges; ripeness/advisory‑opinion concerns bar review | Respondents: Declaratory relief is appropriate to avoid submitting an invalid measure to voters | Court: Pre‑election review is permissible under the Declaratory Judgments Act when a measure may be invalid on its face; existing NJ precedent supports review |
| Whether courts should treat challenges as substantive vs. procedural to deny review | Appellants: characterization as "substantive" should preclude pre‑election review | Respondents: distinction is not controlling; courts may review facial defects | Court: Rejects the substantive/procedural dichotomy; uses established precedent focusing on facial invalidity and statutory compliance |
| Whether a severability clause in an initiative requires a court to excise invalid provisions and submit the remainder to voters | Appellants: robust severability clause reflects voters' intent; court should sever invalid part and allow rest on ballot | Respondents: Court would be required to rewrite the petition, ballot question, and statement; no NJ authority to re‑write initiatives | Court: Under the Faulkner Act a petition must be submitted to voters in substantially the same form; courts should not sever and rewrite initiatives because doing so would interfere with voters' legislative power and impermissibly guess signatories' intent; trial court properly declined to sever |
| Whether the trial court correctly declined to sever paragraph 1(D)(9) and voided the petition | Appellants: severance was required; survive on ballot | Respondents: severance would change substance and intent; entire petition should fail | Court: Affirmed trial court — severance and court‑rewriting not permitted in Faulkner Act initiatives; petition properly invalidated for submission purposes |
Key Cases Cited
- Town of Kearny v. Brandt, 214 N.J. 76 (de novo review of summary judgment) (standard for appellate review)
- Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (trial court legal conclusions receive no special deference)
- City of Newark v. Benjamin, 144 N.J. Super. 58 (Ch. Div.) (pre‑election declaratory relief to test facial invalidity of proposed ordinances)
- Clean Capital County Committee v. Driver, 228 N.J. Super. 506 (App. Div.) (pre‑enactment review limited to facial defects or statutory noncompliance)
- Committee to Recall Robert Menendez v. Wells, 204 N.J. 79 (good reason for pre‑election review when law is defective on its face)