In the Matter of an Initiative

Petition for the Adoption of An

Ordinance to Amend the Jackson
Township Administrative Code


Mayor and Township Council of
Jackson Township,

Plaintiffs-Respondents

- and -

Nicolas Antonoff, Catherine V.
Giancola, Richard F. Davidson,
Raymond J. Cattonar, and Roger
E. Downing,

Interested Parties-
Petitioners

SUPREME COURT OF NEW JERSEY
Docket No: 075022


On petition for certification
from a Final Judgment of the
Appellate Division of the
Superior Court of New Jersey
(No. A-0517-13T1), reported
at 437 N.J. Super. 203 (App.
Div. 2014)


Sat below:
Hon. Jane Grall, P.J.A.D.,
Hon. William E. Nugent,
J.A.D., and Hon. Allison E.
Accurso, J.A.D.


PETITION FOR CERTIFICATION





Flavio L. Komuves, Esq.
(No. 018891997)
ZAZZALI, FAGELLA, NOWAK,
KLEINBAUM & FRIEDMAN
One Riverfront Plaza,
Suite 320
Newark, New Jersey 07102
(973) 623-1822
fkomuves@zazzali-law.com


Rene Steinhagen, Esq.
(No. 038691989)
NEW JERSEY APPLESEED
PUBLIC INTEREST LAW CENTER, INC.
744 Broad Street, Suite 1600
Newark, New Jersey 07102
(973) 735-0523
steinhagen_pilc@yahoo.com


Co-counsel for Petitioners
TABLE OF CONTENTS
PETITION
TABLE OF AUTHORITIES..........................................iii
STATEMENT OF THE CASE...........................................1
PROCEDURAL HISTORY AND STATEMENT OF FACTS.......................3

QUESTIONS PRESENTED.............................................8

REASONS TO GRANT CERTIFICATION/COMMENTS ON THE
APPELLATE DECISION..............................................9

A. Justiciability.......................................12

B. The Severability Clause..............................15

C. The Voters Right of Choice: Samson and
Clean Capital........................................17

D. Judicial Surgery as an Alternative to Full
Invalidation and the Voters Final Say...............19

CONCLUSION.....................................................20
CERTIFICATION OF COUNSEL.......................................21


ii
ANNEXES
1. Notice of Petition for Certification, September 22, 2014
2. Appellate Division Decision, September 8, 2014
3. Law Division Order, August 16, 2013
4. Law Division Transcript of Decision, August 16, 2013


SEPARATELY SUBMITTED HEREWITH

1. Petitioners Appellate Division Brief and Appendix, filed
on November 26, 2014.

2. Petitioners Appellate Division Reply Brief, filed on
February 24, 2014.


iii
TABLE OF AUTHORITIES
Page(s)
CASES
City of Newark v. Benjamin, 144 N.J. Super. 58
(Ch. Div.), aff'd o.b., 144 N.J. Super. 389
(App. Div. 1976), aff'd o.b., 75 N.J. 311 (1978)..........13

Clean Capital Cnty. Comm. v. Driver, 134 N.J. 468
(1988), affg in part & mod., 228 N.J. Super. 506
(App. Div. 1988) ..................................2,4,16-19

El Paso & N.E. R. Co. v. Gutierrez, 215 U.S. 87 (1909).........19

Gamrin v. City of Englewood, 76 N.J. Super. 555
(Ch. Div. 1962)...........................................18

Gormley v. Lan, 88 N.J. 2 (1981)...............................17

Great Atl. & Pac. Tea Co. v. Borough of Point
Pleasant, 137 N.J. 136 (1994) .............................3

Greek v. So. Brunswick, 257 N.J. Super. 94
(App. Div. 1992)..........................................16

In re Attorney General's Directive on Exit Polling:
Media & NonPartisan Public Interest Groups,
200 N.J. 283 (2009).......................................15

In re Ordinance 04-75, 192 N.J. 446 (2007)......................3

In re Petition for Referendum on City of Trenton
Ordinance 09-02, 201 N.J. 349 (2010).....................3,9

N.J. Democratic Party v. Samson, 175 N.J. 178 (2002)...........17

Ringwood Solid Waste Mgmt. Auth. v. Ringwood,
131 N.J. Super. 61 (Law Div. 1974)........................12

Rowson v. Twp. Comm. of Mantua Twp.,
171 N.J. Super. 129 (App. Div. 1979)......................18

State v. Abeskaron, 326 N.J. Super. 110
(App. Div. 1999)..........................................14

State v. Natale, 184 N.J. 458 (2005)...........................16

iv
State v. Trump Hotels & Casino Resorts, Inc.,
160 N.J. 505 (1999).......................................19

Tumpson v. Farina, 218 N.J. 450 (2014)........................3,9


STATUTES

N.J.S.A. 10:4-6 et seq..........................................6

N.J.S.A. 40:69A-1 et seq........................................2

N.J.S.A. 40:69A-184.............................................3

N.J.S.A. 40:69A-191.......................................8,16,17

N.J.S.A. 40:69A-192.............................................5


RULES

R. 4:5-2........................................................5


OTHER AUTHORITIES

Gordon & Magleby, Pre-Election Judicial Review of
Initiatives and Referendums,
64 NOTRE DAME L. REV. 298 (1989) ............................11

STATEMENT OF THE CASE

This case presents important issues of first impression in
this States election law. It began with a petition filed by
voters proposing a fiscally cautious change to the way their
municipal law department was organized. Effectively, the
proposal called for an in-house counsel and staff for municipal
legal needs, rather than outsourcing of such work via no-bid
contracts voted upon by Council members. A full eight months
after the Clerk accepted the petition, the municipal government
sued the petitioners, claiming that some trivial aspects of
their proposal were flawed. At this point, the proposal had not
been put to the voters and was no more enforceable than an
unpassed legislative bill or proposed local ordinance.
Rather than dismissing the suit as premature, the lower
courts forced the citizen advocates to defend the declaratory
judgment lawsuit, concluding that, unlike any other kind of
lawmaking, the validity of a citizens proposal is justiciable
prior to adoption by the voters. They then applied this
conclusion to a complaint that vaguely challenged isolated
sections of the proposal, but which conceded that the core of
the proposal, creating an in-house legal department and defining
its staff and duties, were unobjectionable. Compounding their
error, those same courts, while trying to decipher alleged flaws
in various paragraphs and subparagraphs, also ignored the

2
bigger picture: the particularly robust severability clause in
this proposal. Contrary to principles of liberality in the
enforcement of referendum laws, the proper role of unambiguous
severability clauses, voter rights, judicial restraint, and the
authority of courts to correct ballot questions, the courts
decided it was proper to strike the proposal from the ballot in
its entirety because of a discrete and minor flaw.
The novelty and importance of these issues were expressly
recognized by the Appellate Division in its published opinion.
(Annex 2, pp. 11, 15). They arise from the right of citizen
lawmakers to propose an ordinance under the initiative process,
pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 et seq. (the
Act). The Act confers initiative rights on citizens in
approximately 129 of the States municipalities, including all
10 of the most populous municipalities, and 16 of the top 20.
This makes the issues in this petition important to millions of
citizens and dozens of municipal governments.
This Court should also grant certification because this
ruling signals a marked curtailment in citizens initiative
rights. It clearly contradicts the Courts consistent string of
modern precedents favoring the citizen in initiative and
referendum (I&R) litigation,
1
where this Court has repeatedly

1
See, e.g., Clean Capital Cnty. Comm. v. Driver, 134 N.J. 468
(1988), affg in part & mod., 228 N.J. Super. 506 (App. Div.

3
recognized that the procedure for enforcing these rights should
be liberally construed in the citizens favor. The appellate
decision undermines these principles. It erects what will often
be an impassable hurdle for citizens groups that are forced to
turn to the voters, when elected officials are unresponsive to
their proposals. The decision also burdens those groups which,
unlike municipal governments, must start any successfully-
challenged petitioning effort from scratch, rather than simply
revising a draft in the comfort of a town meeting room.
PROCEDURAL HISTORY AND STATEMENT OF FACTS

Effective in July 2006, Jackson Township adopted the Mayor-
Council form of government under the Act. By doing so, the
citizens of Jackson Township thus obtained the power of I&R for
local ordinances. The initiative power allows Jackson citizens
to propose virtually any ordinance that is within the power of
its mayor and council to enact, N.J.S.A. 40:69A-184. The
proposal that was proffered to the Townships voters here had
its genesis in a November 2011 report (Da54-69), prepared by
knowledgeable taxpayers, proposing to move most of the

1988) (allowing initiative on recycling); Great Atl. & Pac. Tea
Co. v. Borough of Point Pleasant, 137 N.J. 136 (1994) (allowing
nonbinding zoning referendum); In re Ordinance 04-75, 192 N.J.
446 (2007) (allowing referendum on police department
reorganization); In re Petition for Referendum on City of
Trenton Ordinance 09-02, 201 N.J. 349 (2010) (allowing
referendum on sale of city water utility); Tumpson v. Farina,
218 N.J. 450 (2014) (providing expansive remedies when
referendum rights are wrongfully denied).

4
Townships legal work from outside firms to an in-house attorney
and paralegal (Da57-58). Thorough analyses and cost comparisons
were reported, including the experience of adjacent
municipalities that had made a similar switch (Da64-69).
As a further means of realizing monetary savings and other
intangible benefits for taxpayers, the report proposed (in an
separate section) an innovative solution that would further
allow the Jackson Township Board of Education (JBOE) (the tax
base of which is conterminous with the Township) to use the
services of the Townships in-house attorney (Da60, 68-69). The
desirability of this change was endorsed by state and county
officials (Db8 n.1 and materials cited there).
By early January 2012, drafting was complete. The proposal
included a robust severability clause describing the drafters,
signers, and voters intent in the event of partial invalidity:
The provisions of this Ordinance are severable. If any
part of this Ordinance, or application of this Ordinance,
shall be ruled illegal, unconstitutional, or void, the
remaining parts of this ordinance shall be unaffected by
such ruling. Every person signing an initiative petition
proposing this ordinance, and every person voting to
approve this Ordinance, would have signed the petition
and/or voted to approve this ordinance notwithstanding
the possibility that one or more parts of this Ordinance
or applications of this Ordinance might be ruled illegal,
unconstitutional, or void. [Da26, 4 (emphasis added)].

The petitioners filed the initiative papers, which were
sufficient in number for the proposal to move forward (Da50,
14; Da28). In accordance with the Acts initiative procedure,

5
the proposal was formally presented to the Township Council,
which rejected it at an October 2, 2012 meeting (Da32-35; T76-
78). The next general election that was more than 40 days after
that date, N.J.S.A. 40:69A-192, was in November 2013.
2

Eight months later, the Jackson Township Mayor and Council
(hereinafter, the Township), sued the Committee of
Petitioners, the citizen leaders of the petition drive, arguing
that no aspect of the proposal should be submitted to the voters
at the November 2013 election (Da1-6). The Complaint was so
vague in its claims (see Da4-5, 16) that the petitioners
averred it violated R. 4:5-2, requiring at least some
particularity in a complaint (Da9, Def. No. 5).
As developed in subsequent briefing, the Township ended up
acknowledging that almost all of the proposal constituted a
proper subject for an initiative petition, specifically, the
numerous provisions that created an in-house, salaried, Director
of Law and a paralegal position, and defined the duties and
compensation of these employees (T20:24-21:4; T50:19-22). But,
said the Township, the proposal was flawed because: (1) the
township changed the numbering of its Administrative Code in the
midst of petitioning, making a section reference inaccurate; (2)

2
One should note that this, like most initiative proposals, was
slated to go before the voters at a general election, not a
special election. Accordingly, there would have been effectively
a zero cost to taxpayers to allow the question to proceed.

6
a provision that enhanced the disclosures required by law when
engaging outside counsel allegedly violated OPMA, N.J.S.A. 10:4-
6 et seq.; (3) it created conflicts of interest prohibited by
the RPCs; and (4) it stated that the JBOE could use the services
of the Townships legal department, without disclosing that a
shared-services agreement (SSA) would be necessary to
implement the arrangement.
In their Answer, the petitioners responded that the claims
were nonjusticiable, unripe, and sought improper rulings on
hypotheticals and contingencies (Da9, Defs. 2-3). The pre-
enactment challenge also forced them to defend their actions in
court, diverting resources from a campaign on the proposal
(T53:16-54:4). The Answer also highlighted the robust
severability clause in the proposal (Da9, Def. 6; T43-44,54-56).
Much mud was thrown, but the trial judge summarily and
decisively dismissed the first three objections. The Township
abandoned these claims on appeal (Db15; Annex 2, p. 10 n.1).
Rather, in the cross-motions for summary judgment, the core of
the Townships challenge was directed solely at Subparagraph
D(9), the provision stating that the Township could render legal
services to the JBOE, at no additional cost to the JBOE. At
bottom, Judge Wellerson agreed that the proposal to adopt an in-
house legal department was lawful (T112:3-4); but that
Subparagraph D(9), if passed by the voters, would require

7
negotiation and execution of a SSA between the Township and the
JBOE (T113:15-22); that the proposal did not disclose that this
subparagraph of the proposal was subject to these future
negotiations; and for that reason, that subparagraph was void.
Having come to that conclusion, the judge then turned to
the question of whether the proposal should be voided in its
entirety; or whether prudence counseled a narrower and less
intrusive approach: severing the allegedly offending section
from the proposal, and making consistent modifications to the
ballot question. For reasons that are amplified infra, the
Courts chose the incorrect remedy by striking the entire
proposal and removing it from the voters.
Judgment in favor of the Township was entered on August 16,
2013 (Da103), and a timely appeal then followed (Da96-100). The
decision was affirmed on September 8, 2014. It mechanically
followed some older precedents under the Declaratory Judgments
Act without heeding other principles of justiciability that are
equally important constraints on what cases courts should hear,
and when. Similarly, the appeals court confused judicial power
to act when a citizen proposal is jurisdictionally invalid,
facially and in toto, with the applicable rule when, as here,
only a portion is challenged. Alarmingly, the Court actually
viewed its actions as empowering citizens when the real result
was to take away their voice because of inartful drafting.

8
Finally, the court failed to apply the long-standing judicial
practice of limiting a judgment of a laws invalidity to only
that portion that is in fact invalid, especially when lawmakers
state that preference through a severability clause. Defying
applicable precedents regarding citizen I&R rights and the
proper role of the judiciary, the appeals court found in favor
of the municipal government whose inaction prompted the petition
in the first place. Its erroneous ruling should be reviewed and
reversed.
QUESTIONS PRESENTED
1. Because courts do not entertain pre-enactment
challenges to legislative bills or ordinances, and certainly not
when the challenge is merely about vague language, drafting
errors, or other reasons that might cause only partial
invalidity, may the courts treat the justiciability of pre-
enactment challenges to citizens initiatives differently from
those other kinds of lawmaking?
2. If a lawful citizen initiative proposal states on its
face that the proponents, petition signers, and voters who
support the proposal each wanted it to be deemed severable and
for any portions not invalidated to remain in effect, does
N.J.S.A. 40:69A-191 prevent the Court from enforcing the
severability clause as written in a pre-enactment challenge?
3. Did the courts below properly invoke judicial

9
restraint by taking jurisdiction over a pre-enactment, partial
challenge to a proposed ordinance, and then fail to honor the
severability clause therein by striking it in its entirety, when
modification of the proposal and the ballot question, assented
to by the petitioners committee, would have preserved the
peoples right to vote on the proposal?
REASONS TO GRANT CERTIFICATION/
COMMENTS ON THE APPELLATE DECISION

The Appellate Divisions published ruling seriously damages
the principles undergirding the Act by allowing opponents of an
ordinance to bring a pre-suit challenge to a citizen proposal,
no matter how insignificant the claimed problem. It fails to
keep faith with the general rule that courts will not render
opinions on hypothetical or contingent questions, like those
raised by a challenge to pending or proposed legislation, and
ignores courts affirmative obligations to avoid voter
disenfranchisement and preserve voter choice.
This Court has repeatedly recognized that citizens ability
to promote a referendum under the Act is an important right. See
supra n.1, and cases cited therein; Trenton Ordinance 09-02, 201
N.J. at 360 (referendum law confers on the citizens the right
to test a challenged ordinance in the crucible of the democratic
process.) (quotation omitted). Just last Term, in Tumpson,
supra, 218 N.J. 450, the Court explained the history of I&R in

10
New Jersey, and its central role in allowing a direct appeal to
the citizens to correct governmental mistakes or inaction:
[T]he referendum and . . . the initiative and recall,
were measures which enable the people to correct the
mistake of their Governors. Governor [Woodrow] Wilson
considered the referendum one of the safeguard[s] of
politics. It takes power from the boss and places it
in the hands of the people.

Id. at 465 (quotations & citations omitted).

The Court explained that it was political and monied elites
who were typically opponents of I&R rights, and that despite
their greater power, they were unsuccessful in their efforts to
stop I&R efforts in the legislative and executive branches:
Indeed, despite their attempts, the machine bosses
in New Jersey were unsuccessful in stripping the
referendum, initiative, and recall provisions from the
Walsh Act. . . . Reformers proposed the referendum as
a democratic antidote against special-interest control
of the legislative process.

[Id. at 465-66 (citations omitted)].

But the resistance by those influential few to the exercise
of I&R power continues unabated. As this lawsuit demonstrates,
having failed in the legislative and executive branches to stop
the citizens power to test a challenged ordinance in the
crucible of the democratic process, these same interests are
now counting on the judicial branch to wrongfully erect
obstacles to the full exercise of I&R rights.
The next chapter of the history of I&R in New Jersey
begun over a century ago will be answered by the outcome of

11
this litigation. Without doubt, a citizen or business who
opposes a citizen proposal does have and should have the right
to try to convince voters that it is unwise; or to challenge the
legal or constitutional validity of a proposal if it passes. The
First Amendment and a vigorous system of judicial review of
local action through prerogative writs guarantee these rights.
But the question presented here is whether the courthouse
doors should be opened to any boss, special interest, or
political ring that wants to thwart the exercise of citizen
power by mounting an expensive, pre-election challenge to an
ordinance, even one like this, which would conserve municipal
tax dollars, before it even goes to the voters. A lawsuit to
strike an initiative or referendum from a ballot is one of the
deadliest weapons in the arsenal of the measures political
opponents. With increasing frequency, opponents of ballot
proposals are finding the weapon irresistible and are suing to
stop elections. Gordon & Magleby, Pre-Election Judicial Review
of Initiatives and Referendums, 64 NOTRE DAME L. REV. 298, 298
(1989). The appellate ruling loaded this irresistible weapon
and handed it over to any and all comers who might have a stake
in fighting a citizen proposal.
The Court here confronts several interrelated questions
about the effective power of citizens to exercise their I&R
rights: specifically, when courts should hear challenges to the

12
substance of their proposals; and what remedies are appropriate
should some part of their proposal be found wanting. The answers
are likewise found in interrelated wellsprings of jurisprudence.
There is an overarching principle of judicial restraint and
justiciability that rightly keeps courts from acting to decide
hypothetical or abstract cases. There is the principle that when
courts act to invalidate a law, they must tread carefully,
invalidating no more than is necessary, especially when its
drafters have said so in a severability clause. And there is the
polestar principle of preserving voters rights to choose, which
has manifested in this Courts vigorous defense of I&R rights
and the resulting mandate that courts should aid in the exercise
of that right, not deny it. These concepts are explored below.
A. Justiciability.

New Jerseys courts, while not as stringent as federal
courts on questions of justiciability, nevertheless adhere to
important self-imposed limits on judicial power, regardless of
the subject of the underlying litigation. For example, there is
a prohibition on advisory opinions or deciding unripe cases and,
of special salience to this case, a prohibition on judicial
interference with the legislative process. Ringwood Solid Waste
Mgmt. Auth. v. Ringwood, 131 N.J. Super. 61 (Law Div. 1974)
(court refused to enjoin second reading of ordinance by
municipal council because of rule of judicial noninterference).

13
The appeals court did not faithfully apply any of these
principles in this case. Primarily, it found solace in the
holding of City of Newark v. Benjamin, 144 N.J. Super. 58, 66-67
(Ch. Div.), aff'd o.b., 144 N.J. Super. 389 (App. Div. 1976),
aff'd o.b., 75 N.J. 311 (1978), that "[i]f an ordinance is
invalid on its face, it would be a useless expenditure of effort
and money to submit it to the electorate before its validity has
been determined. In that case, the court found an exception to
general rules on justiciability for a claim that an ordinance,
on its face, and in toto, was something pre-empted by state law,
i.e., it was something that not even a municipality could pass.
Likewise, all the other cases cited by the appeals court where
the court examined ordinance content involved citizen proposals
that were either not proper subjects for I&R or had no
permissible components or saving construction whatsoever, i.e.,
they were invalid in toto under pre-emption or a similar
comprehensive notion. It is one thing for a court to take
jurisdiction over a complaint that a citizen proposal has no
valid provisions whatsoever, and which will require spending on
a special election. It is quite another, as happened here, to
subject citizen legislators to a lawsuit arguing nit-picks about
section numbering or whether their proposal, while substantively
valid, should have disclosed the need for a SSA (especially
where voting will be at a general election not requiring

14
additional spending). Clean Capital, supra, relied upon by the
appeals court, is not to the contrary. In that case, the trial
court entertained a lawsuit charging that a citizen proposal for
a recycling law was completely pre-empted by state environmental
law and the countys prior refusal to adopt a recycling plan.
228 N.J. Super. at 509. The appeals court reversed, holding that
the proposal was not completely pre-empted and that the other
issues raised, including claims of unconstitutionality were not
ripe for determination. Id. at 513. In sum, Clean Capital
accurately recognizes that a different rule of justiciability
applies to claims of pre-emption or total invalidity, and claims
such as this one, involving only a partial challenge.
These constraints on exercis[ing] jurisdiction in the
abstract, State v. Abeskaron, 326 N.J. Super. 110, 117 (App.
Div. 1999) go to the essential role of the courts, and clever
interpretations of the Declaratory Judgment Act cannot trump
these fundamental principles. Thus, exceptions to justiciability
principles should be granted only for grave, significant and
important reasons. Id. Regardless of whether an exception to
justiciability rules should be granted in response to a claim of
total invalidity or pre-emption, trivial complaints about
alleged drafting errors in discrete sections of a citizen
proposal certainly do not rise to that level of significance.
The defense of such litigation is an accelerated, costly, and

15
time-consuming endeavor that citizens who are championing
democratic rights should not be subjected to. Thus, the courts
below erred by deciding that this case was justiciable.
B. The Severability Clause.

Having assumed jurisdiction over the controversy, the
courts below, no less so than in any other case involving the
interpretation of legislation, were duty-bound to presume that
every word in a [proposal] has meaning and is not mere
surplusage, and therefore we must give those words effect and
not render them a nullity). In re Attorney General's Directive
on Exit Polling: Media & NonPartisan Public Interest Groups,
200 N.J. 283, 29798 (2009). As applied here, this rule includes
giving full effect to the severability clause prominently
included in the proposal, which fully accorded with severability
clauses judicially accepted in New Jersey, see Db16 and cases
cited there, and used the same language found in other
successful petitions. Da80, 6a; Da83, 6; Da88, 7; Da93, 9.
In refusing to honor the severability clause in this
proposal, the appeals court canvassed the out-of-state cases on
the matter, including those holding that when such a clause is
actually included in the proposal (rather than a situation where
a court must guess advocates intent on severability),
3
courts

3
In that regard, the appeals courts concern that it should not
be making subjective decisions about the intent of voters who

16
should uphold it. Db19-21 and cases cited there. But, it then
turned to N.J.S.A. 40:69A-191 and Clean Capital as support for
its refusal to honor the severability clause here. The statutory
authority is irrelevant, and the Clean Capital rule (discussed
in Section C.) actually supports petitioners.
N.J.S.A. 40:69A-191 contains two constraints on the ability
to change an initiative petition. The first restrains the
council, stating that if a council decides to adopt what the
citizens have demanded, it must do in substantially the form
requested by the petition; i.e., there cannot be substantial or
significant alterations. Cf. Greek v. So. Brunswick, 257 N.J.
Super. 94, 107 (App. Div. 1992). The second constraint is on the
Clerk, and states that the Clerk must submit the petitioned-for
ordinance to the voters. Prominently absent from this statute is
any constraint on what the Court may do with ordinances or the
public questions or interpretive statements associated with
them. Thus, when considered together with the authorities
allowing the use of judicial surgery to save an enactment that
is otherwise doomed, State v. Natale, 184 N.J. 458, 485
(2005); or to enjoin an inappropriate ballot question without

signed a petition out of fear that it cannot discern with any
certainty which provisions of an initiative ordinance induced
each voter to sign it is well-meaning, but completely missed
the mark based on this record. The severability clause was
signed by over 1,000 voters, and the Townships inability to
rebut it with competent evidence in the Law Division settled the
issue conclusively (See Drb7-10).

17
invalidating the underlying proposal, Gormley v. Lan, 88 N.J. 2
(1981), it is clear that the appeals court overread N.J.S.A.
40:69A-191 as a bar on honoring a severability clause in a pre-
enactment challenge, when it is not even suggested that such a
clause would have been ignored in a post-adoption challenge. As
a result, the voters right of choice was taken away completely.
C. The Voters Right of Choice: Samson and Clean Capital.
This Courts defense of voters rights is not just found in
the I&R cases cited supra, but has been expressed by this Court
on a far more fundamental level, in N.J. Democratic Party v.
Samson, 175 N.J. 178 (2002). In deciding that case, this Court
emphasized that the judicial branch of government should be a
partner in actions that allow the greatest scope for public
participation in elections and that if a case presents the
option of giving voters a choice or depriving them of one, the
judges role is to enforce this right of choice . . . grounded
in the core values of the democratic system. Id. at 187, 190.
Samson was far from the first time this principle was
applied. In Clean Capital, supra, this Court demonstrated that a
citizens drafting effort that may just need a little more
clarity for voters should be judicially reformed, not stricken
from the ballot. There, a petition proposing a recycling law was
approved for the ballot in Mercer County. It was stricken from
the ballot by the Law Division because in that courts view, the

18
ordinance could not be adopted in the absence of a county
recycling plan. Reversing, the appeals court held that voters
should be allowed to consider the proposal even though there
would still have to be certain additional proceedings and
requirements, including submission to the DEP for approval,
modification or rejection. Clean Capital, 228 N.J. Super. at
512. In other words, like the ordinance proposed here, further
government action (here, an SSA; there, DEP approval) was needed
before it could come into full effect.
When this Court accepted an emergency application in Clean
Capital, it issued an Order that the petition was to go forward
with an interpretive statement [that] should explicitly reflect
that implementation of the ordinance is subject to compliance
with statutory requirements. 134 N.J. at 469. Indeed, this
Court wrote the interpretive statement and attached it to its
Order. Id. at 469-70. The need for further or other governmental
review, in sum, has never been seen as an obstacle to letting
citizens express their voice on a matter of public concern.
4

In the cases cited above, the courts acted as an agent for

4
See generally Gamrin v. City of Englewood, 76 N.J. Super. 555,
558 (Ch. Div. 1962) (though only board of education could decide
issue, municipal councils act in placing nonbinding referendum
question to voters about student placement would not be
enjoined); Rowson v. Twp. Comm. of Mantua Twp., 171 N.J. Super.
129, 133 (App. Div. 1979) (referendum to authorize[] a
substantial degree of cooperation and mutual effort between an
MUA and a governing body was appropriate).

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furthering voter choice, by letting them speak, and not
silencing them. Moreover, in Clean Capital, the judiciary acted
affirmatively to modify ballot language to ensure full voter
disclosure. The courts here should have done the same instead of
opting to silence voters voices.
D. Judicial Surgery as an Alternative to Full
Invalidation and the Voters Final Say.

The path laid out by the appeals court which is to
respond to minor imperfections in a citizens initiative effort
by striking it entirely from the ballot - also runs counter to
principles about the role of courts. Partial invalidation is
preferable to total invalidation, El Paso & N.E. R. Co. v.
Gutierrez, 215 U.S. 87, 96 (1909), and judicial surgery to
strike offending provisions of an enactment is preferable to
rejecting it in its entirety. State v. Trump Hotels & Casino
Resorts, Inc., 160 N.J. 505, 526-27 (1999). The appellate
decision here utterly disregards these principles. After
deciding that this pre-enactment challenge could be heard at
all, the courts decided that whatever flaw existed in the
proposal needed the most severe response possible: total removal
from the ballot. The courts did not tread lightly in this case.
Having chosen to exercise jurisdiction over citizens proposals,
the court should have been cognizant of the differences in the
practicalities of lawmaking by citizens as opposed to municipal

20
governing bodies. The remedy here mocks those differences. By
forcing citizens to return to square one and collect every
single signature again, rather than permitting them to respond
to judicial concerns by consenting to an amendment of the
proposal, the courts below ignored what the case law requires,
and what all petition signatories demanded: a severance of the
offending clause, not effective nullification of the entire
proposal.
CONCLUSION
Allowing the ruling below to go uncorrected would create
serious obstacles to citizens enjoyment of I&R rights. Pre-
election challenges to proposed legislation may be permissible
when the claim is that the proposal is void, facially and in
toto, but not when the challenge is to a discrete, severable
part of the proposal. Doing otherwise wrongfully empowers those
who would deprive citizens of their rights to initiate
legislation and vote.
Respectfully submitted,

NEW JERSEY APPLESEED PUBLIC
INTEREST LAW CENTER, INC.



By: Rene Steinhagen, Esq.

ZAZZALI, FAGELLA, NOWAK,
KLEINBAUM & FRIEDMAN



By: Flavio L. Komuves, Esq.
Co-counsel for Plaintiffs-Petitioners

Dated: October 21, 2014.

21
CERTIFICATION OF COUNSEL

The undersigned counsel certifies that this Petition
presents a substantial question and is filed in good faith and
not for the purposes of delay.





Rene Steinhagen, Esq.




Flavio L. Komuves, Esq.

Co-counsel for Plaintiffs-Petitioners

Dated: October 21, 2014.