A New Jersey appeals court has ruled that local governments, when seeking to have public questions put on the ballot, must have interpretive statements approved in public by the governing body.
A three-judge Appellate Division panel, in a published ruling Monday, said members of the public must have the chance to comment on the interpretive statement, and that the statement cannot merely be submitted to a county elections official by a local clerk without review.
“[W]e perceive no legislative intent to vest a borough administrator … with the authority to submit an interpretive statement with a referendum ballot,” said Appellate Division Judge Scott Moynihan in DeSanctis v. Belmar.
Judges Douglas Fasciale and Thomas Sumners Jr. joined in the ruling.
The case stems from a July 2015 decision by the seaside borough of Belmar to rebuild the Fifth Avenue/Taylor Pavilion, which was heavily damaged in the wake of Superstorm Sandy. The borough sought to spend $4.1 million and decided to borrow $3.9 million through bond financing, according to the decision.
The borough council never considered or approved an interpretive statement to the proposed bond referendum, the court said.
The plaintiffs, led by borough resident Joy DeSanctis, challenged the ordinance at a public meeting, complaining that there was no interpretive statement. Afterward, the borough administrator submitted an interpretive statement to the county clerk, without approval of the borough council or the mayor, and the clerk then included the statement on the sample ballot sent to voters, according to the decision.
The interpretive statement said, in part: “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.”
The statement also noted that the referendum would allow the municipality to obtain Federal Emergency Management Agency reimbursement, and noted that the proposal was unanimously approved by the mayor and council.
The plaintiffs filed a lawsuit in September 2015, challenging the validity of the statement.
Although local voters eventually approved the bond referendum, Monmouth County Superior Court Judge Katie Gummer ruled that the borough’s actions were improper. She said FEMA funding was presented as, but was not, a foregone conclusion, and the last part of the statement, about the measure’s unanimous approval, was meant to be persuasive.
Gummer said the statement was misleading and that it violated the state Civil Rights Act.
Moynihan, in Monday’s decision, said the court was faced with a “knotty” situation.
“We want to make it clear, our ruling should not be construed to require the Mayor and Council to formulate an interpretive statement that is acceptable to all,” Moynihan said. “In light of the knotty possibilities stemming from protracted debate over the interpretive statement language, we leave the final wording to the governing body, subject, of course, to the requirement that it fairly interpret the public question and set forth its true purpose.”
But, he said, there should have at least been a public vote by the council on the wording of the interpretive statement.
The panel added: “We also note that a public vote on an interpretive statement will allow objectors to commence court actions earlier than if they learned of the content of same, as they did here, after it is filed with the county clerk. In the tight electoral time frame, any added time will avoid the rush to the courthouse door, foster a more considered treatment of the issues involved in a challenge, and avoid the expense of the publication—and provision to the voters—of improper interpretive statements.”
The court also agreed with Gummer’s holding on the statement’s invalidity.
“Most of the brief interpretive statement was designed to sway—not inform—voters in defendants’ attempt to finance construction of the pavilion,” Moynihan wrote, adding that the referendum was Belmar’s “fourth attempt to garner public support for the project.”
The plaintiffs’ attorney, Kenneth Pringle, welcomed the ruling.
“You have to adopt a statement at a public meeting,” said Pringle, of Belmar’s Pringle Quinn Anzano. “This can’t be delegated” to a local administrator, he said.
In this case, Pringle said, there was no chance for the opponents of the referendum to challenge the language of the interpretive statement or propose any changes.
The appeals court also approved Gummer’s decision to award the plaintiffs $36,940 in counsel fees, plus costs.
Belmar’s attorney, William Northgrave, of Newark’s McManimon, Scotland & Baumann, did not return a telephone call.