                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-2805-16T4

STEVEN CALTABIANO,
                                            APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                                   March 24, 2017
v.                                            APPELLATE DIVISION

GILDA T. GILL,

     Defendant-Respondent.
_________________________________

            Submitted March 23, 2017 – Decided March 24, 2017

            Before Judges Alvarez, Accurso and Lisa.

            On appeal from Superior Court of New Jersey,
            Chancery Division, General Equity Part,
            Salem County, Docket No. C-0003-17.

            Brown   &   Connery,   LLP, attorneys  for
            appellant (William M. Tambussi and Michael
            J. Miles, on the brief).

            Michael M. Mulligan, Salem County Counsel,
            attorney for respondent.

     The opinion of the court was delivered by

LISA, J.A.D. (retired and temporarily assigned on recall).

     This   case    requires   a   determination    of   the   appropriate

timing and manner of transition to implement a reduction in the

size of the Salem County Board of Chosen Freeholders (Board)

from seven to five members, as approved by the voters of Salem
County in a referendum, pursuant to N.J.S.A. 40:20-20, at the

November 2016 General Election.

       The Salem County Clerk, defendant Gilda T. Gill, determined

that five freeholder positions would appear on the 2017 Primary

and General Election ballots, three to be elected for two years

and two to be elected for four years, and that the terms of all

current      freeholders      would   terminate          on    the       first    Monday

following the 2017 General Election.                  This would be followed in

the future by biennial elections of freeholders, whose terms

would be four years, rather than the current three years.

       Plaintiff, Steven Caltabiano, Chairman of the Salem County

Democratic      Committee,      brought        this    action       challenging        the

Clerk's determination as contrary to law.                        In particular, he

contended that specific statutory provisions would be violated

by this procedure.         These include a provision prohibiting, in

these circumstances, the premature termination of the terms of

sitting freeholders, and a provision requiring voter approval to

change    the   terms    of     office     and       frequency      of    election       of

freeholders.     In addition to seeking a judicial rejection of the

Clerk's plan, plaintiff sought a declaratory judgment that the

transition should be accomplished by placing on the 2017 ballot

only   one    freeholder      position.         Because       the    terms   of     three

freeholders     expire     at   the      end    of     2017,     this     would     fully




                                          2                                      A-2805-16T4
accomplish the reduction from seven to five members beginning in

January 2018 without violating any statutory provisions.

     The trial court rejected plaintiff's proposal and upheld

the Clerk's position, concluding that the Clerk's action was not

outside   the    legislative      scheme    and   she   acted   within   her

discretion.        The   court    entered    an   order    dismissing    the

complaint.1     We now reverse.

     Prior to 1966, Salem County was governed by a large board

of freeholders.      Mauk v. Hoffman, 87 N.J. Super. 276, 280 (Ch.

Div. 1965).      Based upon the "one person – one vote" principle

set forth in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12

L. Ed. 2d 506 (1964), large boards, which were malapportioned,

were no longer constitutionally permissible.              Mauk, supra, 87

N.J. Super. at 284-86.         Beginning in 1966, the Board became a


1
    A Verified Complaint was filed on February 10, 2017, in the
Chancery Division. The case was subsequently transferred to the
Law Division before the same judge. Defendant accepted as true
the facts set forth in the Verified Complaint and the court
likewise accepted those facts.   Defendant moved to dismiss for
failure to state a lawful claim. After briefing, oral argument
was conducted on March 9, 2017, at the conclusion of which the
court issued an oral decision.       The order dismissing the
complaint was entered on March 13, 2017.         On that date,
plaintiff filed a Notice of Appeal and a motion for expedited
consideration because the filing deadline for nominating
petitions for the primary election is April 3, 2017. We granted
plaintiff's motion and issued a briefing schedule. Plaintiff's
brief was filed on March 17, 2017; defendant's brief was filed
on March 21, 2017. The Attorney General declined our invitation
to participate in the appeal.



                                      3                            A-2805-16T4
small board, consisting of seven members elected at large for

three-year terms, which were staggered so two would be elected

in one year, two in the next year, and three in the following

year.     In the ensuing fifty years, the Board has operated under

this regime.

    Salem County is a non-charter county, and is not a county

of the first class.       Accordingly, it is regulated by Article 2B

of Title 40, Chapter 20, codified as N.J.S.A. 40:20-20 to -35.

N.J.S.A.    40:20-20    authorizes    submission    to   the   voters    of   a

proposition in such counties to increase or decrease the number

of members of the freeholder board to three, five, seven or

nine.      Such   a   proposition,    following    precisely   the   wording

required by N.J.S.A. 40:20-20, was placed on the November 2016

General    Election     ballot   in   Salem   County,     followed      by    an

interpretative statement, as follows:

                         SALEM COUNTY QUESTION #1
                            (N.J.S.A. 40:20-20)

            Shall the membership of the Board of Chosen
            Freeholders of Salem County be "decreased"
            from the current seven (7) members to a five
            (5) member board?


                          INTERPRETIVE STATEMENT

            A "Yes" vote will decrease the size of the
            Salem County Board of Freeholders from seven
            members to five members to take effect on
            the Monday following the November 7, 2017
            General   Election  (Monday,   November  13,



                                      4                              A-2805-16T4
             2017). At the current salary of the members
             of the board of chosen freeholders a $50,820
             annual savings will be realized by the
             residents of Salem County.

The     question    was       approved,      with     approximately      seventy-five

percent of the voters in favor.

      N.J.S.A. 40:20-20 also provides:

             When the voters shall have voted to increase
             or decrease the membership of the board of
             chosen freeholders as provided in this
             section, the increase or decrease shall take
             effect for the next general election of
             chosen freeholders.

A provision follows directing the method of adding members when

a proposition approved pursuant to N.J.S.A. 40:20-20 authorizes

an increase in membership.              If two additional members are to be

added, one shall be elected for a term of two years and the

other for a term of three years at the initial election after

approval     of    the    referendum,        and    thereafter,   each    seat   shall

carry    a   three-year       term.       N.J.S.A.     40:20-20a.        However,    no

provision directs the method of reducing membership size.                           Nor

has any reported court decision addressed the issue.

      Resolution         of   the    issue    requires    interpretation      of    the

statutes relevant to the ballot proposition.                  Thus, the issue is

a legal one.       "A trial court's interpretation of the law and the

legal    consequences         that   flow    from     established   facts    are    not

entitled to any special deference."                    Manalapan Realty, L.P. v.




                                              5                              A-2805-16T4
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).                         Therefore,

to   the   extent    that    our        ultimate    determination         rests    upon

statutory interpretation, our review is de novo.                      Ibid.

     The     trial    court,       after        canvassing      various       statutory

provisions, concluded that the Clerk's action was not outside

the statutory scheme.              The court further concluded that the

method     the   Clerk      selected        was     within      her    discretionary

authority.       On appeal, defendant continues to argue that she

acted within her discretionary bounds.                   To the extent that this

issue is relevant, we set forth the applicable standard.

     County      clerks     are        entrusted    by    the    Legislature       with

significant      authority        in     election    matters.          Schundler       v.

Donovan, 377 N.J. Super. 339, 347 (App. Div.), aff’d o.b., 183

N.J. 383 (2005).      Recognizing the role of county clerks in these

matters and their expertise, courts are reluctant to substitute

their judgment for "the considered choices made by the county

clerks."     Id. at 345.     However, in exercising discretion, county

clerks must act "in accordance with standards established by the

Legislature."        Id. at 346.          "In circumstances where the county

clerk's discretion is subject to review, 'it is not for a court

to choose one of several reasonable courses, for that choice is

precisely what the Legislature left to another.'"                      Sooy v. Gill,

340 N.J. Super. 401, 414 (App. Div. 2001) (quoting Richardson v.




                                            6                                  A-2805-16T4
Caputo,      46       N.J.   3,    9    (1965)).       "However,      where     the    county

clerk's      discretion           is   not   'rooted       in   reason,   the    bounds      of

delegated authority have been exceeded and it is the duty of the

court to say so.'"                Ibid. (quoting Richardson, supra, 46 N.J. at

9).

       In rendering its decision, the trial court found support

for the Clerk's position in N.J.S.A. 40:20-25.                             In our view,

that reliance was misplaced.                     To explain why, we must provide

some historical background.

       Prior to the declaration of the "one person – one vote"

principle, a number of New Jersey counties, including Salem,

operated         under       a     large     board     of       freeholders,     but      were

nevertheless statutorily authorized to choose, by referendum, to

switch      to    a    small      board.      N.J.S.A.      40:20-28.      That       section

provides that "the provisions of sections 40:20-20 to 40:20-35

of this title shall be inoperative in any county until adopted

by    the    legal       voters        thereof   at    a    general    election."           The

prescribed form of ballot question must request that voters cast

a "YES" or "NO" vote for the following question:

                 Shall the county of .......... reorganize
                 its board of chosen freeholders under the
                 provisions of sections 40:20-20 to 40:20-35
                 of the title Municipalities and Counties of
                 the Revised Statutes?

                 [N.J.S.A. 40:20-31.]




                                                 7                                    A-2805-16T4
       The other sections pertaining to such a referendum, i.e. to

switch from a large board to a small board, contain the same

description of what would be adopted, namely "the provisions of

sections      40:20-20     to    40:20-35."          See    N.J.S.A.       40:20-29

(requirements for a petition for the ballot question), N.J.S.A.

40:20-32 (conduct of election), N.J.S.A. 40:20-33 (vote required

for adoption), and N.J.S.A. 40:20-34 (resubmission).

       That   same    phrase    further    appears   in    two     other   sections

rounding      out    the   transition      mechanism.           N.J.S.A.   40:20-21

provides for the election of members "[a]t the first election in

each    county      adopting    sections      40:20-20     to    40:20-35."       It

provides for unequal terms for that first election, in order to

establish the three-year cycle required for staggered terms of

three years for each freeholder in future elections.                       N.J.S.A.

40:20-21.

       Finally, N.J.S.A. 40:20-25, entitled "Expiration of terms

of existing members," provides:

              The   terms    of    office of all  chosen
              freeholders in any county then in office
              shall expire at the annual stated meeting
              next succeeding the election of chosen
              freeholders in such county under sections
              40:20-20    to    40:20-35  of this  title
              notwithstanding that the members of such
              previous boards may have been elected or
              appointed for a longer term.

              [N.J.S.A. 40:20-25 (emphasis added)]




                                          8                                A-2805-16T4
       Reading all these provisions together makes clear to us

that N.J.S.A. 40:20-25 refers only to the changeover year from a

large board to a small board.               The phrase "under sections 40:20-

20   to    40:20-35"     does      not    describe    individual       sections.       It

describes Article 2 small-board status.                   That is the new type of

board for which the terms of freeholders, "then in office" as

"members of such previous boards" when such new boards hold

their first annual stated meeting after the election of members

of this new type of board, expire.                    Such a provision comports

with      the   fact   that   members       of   large   boards     were   chosen      by

separate constituencies from districts throughout the county,

whereas the small board members are chosen at large, by a new

constituency made up of all county voters.

       Thus,     whether      by    voter    choice      prior    to    1966,    or    by

constitutional         imperative        after   1966,   the     transition     from     a

large board to a small board required wiping the slate clean,

terminating existing terms of office, and beginning with a whole

new make-up of the membership of the board.2


2
     In the aftermath of Reynolds v. Sims, supra, and Mauk v.
Hoffman, supra, decided respectively in 1964 and 1965, the
Legislature enacted L. 1966, c. 62, §§ 1-4, eff. June 6, 1966,
codified as N.J.S.A. 40:20-35.1 to -35.4.      These provisions
required Article 3 counties, i.e. those that continued to have
large freeholder boards, to come into compliance with the small
board requirement as of January 1, 1967, and thereafter be
governed by and subject to Article 2.           The transition
                                                    (continued)


                                             9                                  A-2805-16T4
    However, this logic does not apply when transitioning from

a small board of one size to a small board of another size

(larger    or    smaller).       In    such    a    case,    all   of     the   existing

members    of    the   board    were     elected      by    the    same    county-wide

constituency.       There is no basis for wiping the slate clean and

prematurely       terminating      the       terms    of     office       of    existing

freeholders who were elected to their three-year terms by the

same constituency.

    This        conclusion     finds   support       by     reference     to    N.J.S.A.

40:20-20a, which provides that when increasing the membership of

a small board, the new members are merely added to the existing

membership.        The Legislature saw no reason to wipe the slate

clean and elect all new members.                   The increase could be easily

achieved    by    simply     having    the     additional      members     join    those

already there, all of whom were chosen by the same county-wide

constituency.       By this means, no duly elected freeholders would

have their terms cut short, continuity could be maintained and

major disruption avoided.



(continued)
arrangement provided for the early termination of terms of
office of all existing members and at-large voting for seven
members with initial terms of one, two, and three years, and
thereafter, all three-year terms. This methodology mirrored the
provisions we have discussed pertaining to transition for
counties choosing to voluntarily switch to small-board Article 2
status by ballot question prior to 1966.



                                          10                                    A-2805-16T4
     In referring to N.J.S.A. 40:20-25 in its oral opinion, the

trial court did not make this distinction.                   In quoting from the

statute, the court said the terms of freeholders "then in office

shall expire at the annual stated meeting next succeeding the

election of chosen Freeholders[] in such counties under Section

40:20-20,    which    is    the   applicable      section    here."        (Emphasis

added).     The court thus concluded that, although other statutory

sections    provide    for    three-year         terms,   under     the    rules      of

statutory     construction,         a    more     specific     provision          takes

precedence over a general one.                 Therefore, the court reasoned,

"where a county has by vote moved to change its government under

Section 40:20-20 that the terms of the then existing members of

the Freeholder[] Board will terminate despite the length still

remaining on those terms."

     For the reasons we have stated, we conclude that the court

did not correctly interpret N.J.S.A. 40:20-25.                  Freeholder terms

in non-charter counties, including Salem County, are for three

years.     N.J.S.A. 40:20-23.           Nothing in Subtitle 2 of Title 40

"shall be construed to affect the term of office of any officer

of   the    county,    or     any       member    of   the    board       of    chosen

freeholders."    N.J.S.A. 40:16-2.

     The trial court's reference to "Section 40:20-20" as an

individual     section,      rather       than    quoting     the     full      phrase




                                          11                                   A-2805-16T4
contained in N.J.S.A. 40:20-25, "sections 40:20-20 to 40:20-35,"

changed the meaning of N.J.S.A. 40:20-25.             As we have explained,

the    full   phrase   does   not   refer   to    individual      sections,    but

describes Article 2 small-board status.             Reliance on a reference

in N.J.S.A. 40:20-25 to N.J.S.A. 40:20-20 individually could not

provide a basis to apply the provisions of N.J.S.A. 40:20-25 to

a referendum approved pursuant to N.J.S.A. 40:20-20.

       The transition plan formulated by the Clerk, and approved

by the trial court, would violate these sections.                   There is no

need    to    disregard   these     sections     because   they    are   not    in

conflict with any other section in Article 2.                  The transition

method proposed by plaintiff would accomplish the goal approved

by the voters of reducing the size of the Board from seven to

five members without prematurely terminating the terms of all of

the existing freeholders.3

       The Clerk's plan is further infirm in changing the terms of

freeholders from three to four years and changing the times for

elections from annual to biennial.               These changes can only be

made by voter approval of a referendum expressly proposing the

change in statutorily prescribed language.             N.J.S.A. 40:20-20.4.

3
    Even for the three members whose terms are set to expire at
the beginning of January 2018, the Clerk's plan would end their
terms on the first Monday after the November 2017 General
Election.




                                       12                                A-2805-16T4
That was not done here.                Including that change as part of the

Clerk's transition plan would be unlawful.4

     In construing statutes, courts should give effect to each

provision    and    they       should       be     "interpreted         so   they    do     not

conflict."         1A    Norman        J.    Singer          &   J.D.   Shambie      Singer,

Sutherland Statutory Construction § 22:34 at 395-96 (7th ed.

2007).      When, within a common subject matter, some statutory

provisions    pertain      to    one        set    of    circumstances         and   some   to

another,    the    judicial      function          is    "to     make   every    effort     to

harmonize them, even if they are in apparent conflict."                                   Saint

Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14 (2005) (citations

omitted).     In these circumstances, the statutes should be read

in pari materia and construed in a manner that, to the extent

possible,    will       give    full    effect          to   all   of    the    provisions.




4
    It appears from the colloquy at oral argument in the trial
court that the interpretative statement and the transition plan
were based on the mistaken belief that N.J.S.A. 40:20-20.5 was
the operative transition directive.    That section provides for
early termination of all existing terms, change to four-year
terms, and biennial elections. On its face, N.J.S.A. 40:20-20.5
applies only to the first election of members after a favorable
vote on a proposition approved pursuant to "section 6 of this
amendatory and supplemental act," i.e. pursuant to N.J.S.A.
40:20-20.4. See N.J.S.A. 40:20-20.5 n. 1. N.J.S.A. 40:20-20.4
allows a ballot question to increase terms from three to four
years and provides for biennial elections with staggered terms.
In the trial court, the Clerk tacitly abandoned this position,
recognizing it was erroneous.    This incorrect reliance was the
apparent basis underpinning the Clerk's transition plan.



                                              13                                     A-2805-16T4
Walcott v. Allstate New Jersey Ins. Co., 376 N.J. Super. 384,

391 (App. Div. 2005).

       We are confronted here with a statutory scheme governing

Article    2    counties       that     contains       two    subsets        of    provisions

pertaining to changes in the size of the board.                               One, a major

change, is from the old large freeholder boards to the modern

small    boards.         The    other     is    a     relatively        minor      change    of

adjusting the membership of a small board within a very narrow

range allowable.              In the former, the freeholders before and

after the change are elected by different constituencies.                                   In

the latter, the before-and-after freeholders are elected by the

same constituency.             Transition procedures should be designed to

effect    the    transitions       in    these       respective     changes         smoothly,

with    the     least    disruption        possible,         and   in    a    manner       that

comports       with     the     apparent       legislative         intent         behind    the

authorization for or requirement for making the change in the

first place.          And, of course, the transition methodology should

avoid     rendering       some     statutory          provisions        meaningless         and

patently violating others.

       The Clerk's plan, approved by the trial court, does not

comport with these principles.                      The plan proposed by plaintiff

does.




                                               14                                    A-2805-16T4
       This brings us to the question of whether the Clerk had

discretionary         authority         to    direct     her    plan.           As    a        general

proposition,         when       there    is     no     statutory      mandate             as    to     a

procedure,     county        clerks      have      discretion        in    how       to    proceed.

Schundler, supra, 377 N.J. Super. at 343.                        The trial court found

that the Clerk's action was not outside the statutory scheme,

thus   providing       a     basis      for    countenance       of       the    discretionary

determination made.

       However, we have reached a contrary conclusion, namely that

the    Clerk's    determination              was     outside    the       statutory            scheme.

Accordingly, that determination cannot withstand the "rooted in

reason"    test.           We    are    constrained       to     hold       that      the        Clerk

mistakenly       exercised         any       discretion        she    may        have       had      in

formulating her plan.                  We do not suggest in any manner that

there was an absence of good faith here.                         However, our analysis

of the applicable statutory provisions and rules of statutory

construction lead us to the conclusion that her plan must be set

aside.

       Finally, we comment on the interpretive statement.                                      Such a

statement      was     not      needed        here    because    the       wording             of    the

question was perfectly clear.                      The fact that the interpretative

statement included incorrect information, namely that the change

from   seven     to    five      members       would    take    effect          on    the      Monday




                                                15                                          A-2805-16T4
following the November 7, 2017 general election, does not change

the result.   The thrust of what the voters were deciding was

whether to downsize the board for the long term.   The transition

arrangements were incidental and relatively insignificant.     See

Rooney v. McEachern, 128 N.J. Super. 578, 588 (Law Div.), aff’d

o.b., 65 N.J. 256 (1974).

    The judgment of the trial court is reversed.       The Clerk

shall place on the Primary and General Election ballots for 2017

one freeholder position to be elected for a three-year term.

The terms of the three freeholders elected in 2014 shall expire

by operation of law at the time of the organizational meeting of

the board in January 2018.    The remaining terms of the other

freeholders shall be unaffected.




                               16                        A-2805-16T4
