A2149

An Act concerning initiated ordinances and referendum petitions and amending P.L.1950, c.210.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 17-35 of P.L.1950, c.210 (C.40:69A-184) is amended to read as follows:

17-35. a. The voters of any municipality may propose any ordinance and may adopt or reject the same at the polls, such power being known as the initiative. Any initiated ordinance may be submitted to the municipal council by a petition signed by a number of the legal voters of the municipality equal in number to at least 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected. An initiated ordinance may be submitted to the municipal council by a number of the legal voters of the municipality equal in number to at least 10% but less than 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected, subject to the restrictions set forth in section 17-43 (C. 40:69A-192) of this act.

b. The provisions of this section shall not authorize the adoption of an ordinance:

(1) that the governing body itself is not authorized to adopt,

(2) that is statutorily prohibited from being adopted by initiative,

(3) the subject of which is administrative in character rather than legislative in character

(4) that is inconsistent with a law that represents an exclusive grant of power to municipalities within a statutory scheme that imposes procedural or other requirements on the municipality,

(5) that is violative or inconsistent with the laws of this State or the federal government or the State or federal constitutions.

As used in this subsection:

"Administrative in character" means matters that are inherently temporary in operation and effect or those that result from governmental powers that are exercised to carry out legislative policies and purposes already established either by the governing body or devolved upon it by the laws of the State; and

"Legislative in character" means matters that are of a permanent or general character.

c. Within three days after an initiative petition is filed, the municipal clerk shall deliver a copy of the petition to the municipal attorney. Upon receipt of an initiative petition, the municipal attorney shall undertake a review of the legal sufficiency of the proposed ordinance for the purpose of ensuring that the provisions of the proposed ordinance are within the scope of powers and duties of the municipality to act or are not otherwise prohibited by subsection b. of this section. Within 14 days after an initiative petition is filed with the municipal clerk, the municipal attorney

shall deliver to the clerk a certification of legal sufficiency or a statement certifying the legal defects with the proposed ordinance.

(cf: P.L.1982, c.145, s.1)

2. Section 17-36 of P.L.1950, c.210 (C.40:69A-185) is amended to read as follows:

17-36. a. The voters shall also have the power of referendum which is the power to approve or reject at the polls any ordinance submitted by the council to the voters or any ordinance passed by the council, against which a referendum petition has been filed as herein provided. No ordinance passed by the municipal council, except when otherwise required by general law or permitted by the provisions of section 17-32(b) of this act, shall take effect before twenty days from the time of its final passage and its approval by the mayor where such approval is required. If within twenty days after such final passage and approval of such ordinance a petition protesting against the passage of such ordinance shall be filed with the municipal clerk and if the petition shall be signed by a number of the legal voters of the municipality equal in number to at least 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected, the ordinance shall be suspended from taking effect until proceedings are had as herein provided.

b. The provisions of this section shall not apply to any ordinance:

(1) which by its terms or by law cannot become effective in the municipality unless submitted to the voters, [or]

(2) which by its terms authorizes a referendum in the municipality concerning the subject matter thereof,

(3) the subject of which is administrative in character rather than legislative in character,

(4) which is statutorily excluded from referendum provisions, or

(5) the subject of which is in response to an exclusive grant of power to municipalities within a comprehensive statutory scheme that imposes procedural or other requirements on the municipality.

As used in this subsection:

"Legislative in character" means matters that are of a permanent or general character.

c. Within three days after a referendum petition is filed, the municipal clerk shall deliver a copy of the petition to the municipal attorney. Upon receipt of the petition, the municipal attorney shall undertake a review of the legal sufficiency of the proposed referendum for the purpose of ensuring that the provisions of the proposed referendum are not violative of the provisions of subsection b. of this section. Within 14 days after a referendum petition is filed with the municipal clerk, the municipal attorney shall deliver to the clerk a certification of legal sufficiency or a statement certifying the legal defects in the proposed referendum petition.

(cf: P.L.1982, c.145, s.2)

3. Section 17-38 of P.L.1950, c.210 (C.40:69A-187) is amended to read as follows:

17-38. a. All petition papers comprising an initiative or referendum petition shall be assembled and filed with the municipal clerk as one instrument. Within twenty days after a petition is filed, the municipal clerk shall determine whether each paper of the petition has a proper statement of the circulator and whether the petition is signed by a sufficient number of qualified voters.

b. After [completing his] a complete examination of the petition, the municipal clerk shall certify the result [thereof] of the examination and forward the municipal attorney's certification of legal sufficiency or statement certifying legal defects, as required by the provisions of subsection c. of section 17-35 of P.L.1950, c.210 (C.40:69A-184) or subsection c. of section 17-36 of P.L.1950, c.210 (C.40:69A-185), to the council at its next regular meeting. If [he] the municipal clerk shall certify that the petition is insufficient [he], the clerk shall set forth in [his] the certificate the particulars in which it is defective and shall at once notify at least two members of the Committee of the Petitioners of [his] those findings.

c. Whenever a municipal attorney certifies that a proposed ordinance submitted by initiative petition or a proposed referendum petition is legally defective because it is violative of the provisions of subsection b. of section 17-35 of P.L.1950, c.210 (C.40:69A-184) or subsection b. of section 17-36 of P.L.1950, c.210 (C.40:69A-185), the governing body may seek and obtain in a summary proceeding in the Superior Court an injunction prohibiting the submission of the proposed ordinance to the voters.

(cf: P.L.1950, c.210, s.17-38)

4. This act shall take effect immediately.

STATEMENT

This bill would establish an expedited mechanism for a Faulkner Act municipal governing body to keep an ordinance initiated by the voters off the ballot if it is determined that the ordinance would exceed the authority of the municipality or is otherwise inappropriate. Similarly, the bill would establish a mechanism to prohibit a referendum petition from forcing the submission of an ordinance to the voters if it would be inappropriate to submit the ordinance to the voters. This bill would codify a body of case law, following the line of Cuprowski v. City of Jersey City, 101 N.J.Super. 15 (Law Div., 1968), aff'd. 103 N.J.Super. 217 (App. Div. 1968), certif. den. 53 N.J. 80 (1968), that constrains the use of initiative and referendum procedures.

Recently, a proposed ordinance that contained provisions contrary to State and federal law was placed upon a local ballot. Fortunately for that municipality the initiative failed before the voters. Had it garnered the requisite votes, the municipality would have had to incur expenses in order to take the matter to court.

While the voters in Faulkner Act municipalities possess the power to propose new ordinances by initiative, it has long been understood that "the Faulkner Act does not imbue initiative-proposed ordinances with any qualities different from other ordinances. Only municipal legislation that may be enacted by the governing body itself may be the subject of an initiative proceeding." Maese v. Snowden, 148 N.J.Super. 7 (App. Div. 1977). In Maese, when the municipal clerk took steps to prevent submission of an initiated ordinance to the voters, upon advice from the municipal attorney that the proposed ordinance was illegal, the petitioners sued to compel placement of the ordinance on the ballot.

This bill would save a municipality the time and cost of responding to a lengthy legal proceeding when confronted with an inappropriately initiated ordinance or inappropriate referendum petition. The municipal attorney would be required to undertake a legal sufficiency review upon the clerk's receipt of an ordinance proposed by initiative or a referendum petition. If the municipal attorney determines that the proposed ordinance or referendum petition is legally defective, the municipal governing body could seek and obtain in a summary proceeding in the Superior Court an injunction prohibiting the submission of the proposed ordinance to the voters.