                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0517-13T1

IN    THE   MATTER    OF    AN           APPROVED FOR PUBLICATION
INITIATIVE PETITION FOR THE                     September 8, 2014
ADOPTION OF AN ORDINANCE TO
AMEND THE JACKSON TOWNSHIP                  APPELLATE DIVISION
ADMINISTRATIVE CODE.
_____________________________________

           Argued February 26, 2014 — Decided September 8, 2014

           Before Judges Grall, Nugent, and Accurso.

           On appeal from Superior Court of New Jersey,
           Law Division, Ocean County, Docket No. L-
           1217-13.

           Renée   Steinhagen  argued   the  cause for
           appellants Nicolas Antonoff, Catherine V.
           Giancola, Richard F. Davidson, Raymond J.
           Cattonar, and Roger E. Downing (Zazzali,
           Fagella, Nowak, Kleinbaum & Friedman, and
           New Jersey Appleseed Public Interest Law
           Center, Inc., attorneys; Ms. Steinhagen and
           Flavio L. Komuves, on the brief).

           Kevin N. Starkey argued the cause for
           respondents Mayor and Township Council of
           Jackson Township (Starkey, Kelly, Kenneally,
           Cunningham   &   Turnbach,  attorneys;   Mr.
           Starkey, on the brief).

    The opinion of the court was delivered by

NUGENT, J.A.D.

    This    appeal   involves   a   governing     body's    pre-election

challenge to an ordinance proposed in an initiative petition.

The trial court declared a section of the ordinance unlawful
but,    notwithstanding       a    severance         clause     in    the      ordinance,

declined    to   sever   the      unlawful       section      and    order          that   the

excised ordinance be placed on the ballot.                           We affirm.             We

conclude that the trial court had the authority to hear the pre-

election    challenge    to       the    proposed      ordinance.              We    further

conclude that the court did not have the authority to revise the

ordinance and order that the altered ordinance be placed on the

ballot.

                                               I.

       Appellants,    Nicolas           Antonoff,      Catherine          V.    Giancola,

Richard F. Davidson, Raymond J. Cattonar, and Roger E. Downing,

were the Committee of Petitioners responsible for an initiative

petition to amend a Jackson Township ordinance.                       Respondents are

the Mayor and Council of Jackson Township.                      Jackson Township is

organized under the Optional Municipal Charter Law (the Faulkner

Act),    N.J.S.A.    40:69A-1      to     -210.      The   power     of     local       self-

government in municipalities organized under the Faulkner Act

includes, with some exceptions, the right of voters to "propose

any ordinance and . . . adopt or reject the same at the polls,

such power being known as the initiative."                    N.J.S.A. 40:69A-184.

"Any    initiated    ordinance      may     be      submitted    to    the      municipal

council by a petition signed by" a required percentage of legal




                                           2                                         A-0517-13T1
voters.   Ibid.; see also N.J.S.A. 40:69A-185 (setting forth the

procedures for the referendum process).

      The petition must contain "the names and addresses of five

voters,   designated       as    the    Committee     of    the     Petitioners,        who

shall be regarded as responsible for the circulation and filing

of the petition and for its possible withdrawal as hereinafter

provided."          N.J.S.A.      40:69A-186.              As     previously          noted,

appellants    are    the    Committee       of   Petitioners            responsible      for

filing the petition and proposed amended ordinance that are the

subject of this appeal.

      The events that led to the initiative in this case began in

November 2011 when two of the appellants, Catherine V. Giancola

and   Raymond       J.     Cattonar,        prepared        a     "Jackson       Township

Feasibility     Study"     on    the    topic    of    "Insourcing            [the]    Legal

Department."        Their       study    "relied      on,       among    other    things,

extensive interviews of knowledgeable persons, and a thorough

review of available literature on the matter."

      The purpose of the study was to "ascertain whether it is

more cost effective to retain an in-house legal staff versus

outsourcing Jackson Townships [sic] legal needs," which was the

practice at the time.            The study recommended, as a cost-saving

measure, employing in-house counsel and a paralegal instead of

outsourcing     legal    work     to    a   private    firm.            The    study    also




                                            3                                     A-0517-13T1
proposed a shared-services agreement between the Township and

the   Jackson      Board    of   Education        (the    Board),    in     which   the

Township's new in-house counsel would also handle legal matters

for the Board, at no additional cost.                      The Township and the

Board   would      still    be   able    to      retain    outside        counsel   for

specialized legal services that could not be handled by the new

in-house attorney and paralegal.

      From    November       2011     through      January        2012,     appellants

"oversaw     the   drafting      of   the       petition    and    ordinance"       that

proposed to amend the Township's code provisions concerning its

legal   department         and   municipal        attorney.          The     ordinance

provides:

                  1.   Section  3-87   of  the   Jackson
             Township Administrative Code is amended to
             read as follows:

             A.   There is hereby created the Department
             of Law, the head of which shall be the
             Director of Law, who shall be the Municipal
             Attorney.   The Director of Law shall be a
             full-time      salaried     position,     the
             compensation for which shall be fixed by the
             Council. There is also created the position
             of    Paralegal    Specialist    within   the
             Department of Law which shall be a full-time
             salaried position, the compensation for
             which shall be fixed by the Council. No
             full-time attorney of the Division of Law
             shall engage in any other practice of law
             for compensation unless the Mayor, in a
             signed writing, has approved the particulars
             of such other employment or practice of law.




                                            4                                 A-0517-13T1
B.   The Director of Law and the Paralegal
Specialist shall be appointed by the Mayor
with the advice and consent of the Township
Council and, unless provided by other law,
shall serve at the pleasure of the Mayor and
Council.   The Municipal Attorney shall be a
graduate of an accredited law school duly
admitted to the practice of law in the State
of New Jersey for at least five years and an
attorney at law of the State of New Jersey
in good standing.

C.   In order to efficiently and competently
discharge the duties of the Division of Law,
the Director of Law, within the limits of
available appropriations, may retain other
attorneys,    paraprofessionals   and    other
staff, either on a full- or part-time
salaried or contract basis.     Any retention
of the services of other persons shall not
be   effective   until   disclosure   of   the
person(s) retained and the purpose of their
retention   is   made   in  writing   to   the
Municipal Council at a public meeting.

D.   The Division of Law, acting through its
Director or such other person who has been
delegated authority by the Director, shall
be a legal advisor to the Mayor, Council and
all   departments,   except   as   otherwise
provided by the Charter or the Township
Code.   The Division of Law, acting through
its Director or such other person who has
been delegated authority by the Director,
shall prosecute and defend actions and
proceedings by and against the Township and
every department thereof. In furtherance of
these general powers and without limitation
thereto, the Division shall:

(1) Advise the Council and its members, the
Mayor and other officers of the Township, as
to all matters which may be submitted for
its opinion.




                      5                          A-0517-13T1
(2) Review    and  approve   all  contracts,
deeds, documents and instruments prior to
the execution thereof by or on behalf of the
Township.

(3) Institute    litigation    and   conduct
appeals from orders, decisions or judgments
affecting any interest of the Township as
determined in its discretion to be necessary
or desirable.

(4) Subject   to   the  approval  of   [the]
Council, have the power to enter into any
agreement, compromise or settlement of any
litigation  in   which   the   Township   is
involved.

(5) Render opinions in writing upon any
question of law submitted by the Mayor, the
Council,    the    Business   Administrator,
Municipal Clerk, Tax Assessor, or the head
of any department.

(6) Maintain a record of all actions,
suits, proceeding and matters which relate
to   the  Township's interest  and  report
thereon from time to time as the Mayor or
Council may require.

(7) Attend    such   Council   meetings   as
requested by [the] Council.

(8) Have     such    other and  different
functions, powers and duties as may be
provided by the Charter, this chapter or
other ordinance; and

(9) At the request of the Jackson Township
Board of Education or the duly-appointed
officials thereof, and provided there is no
conflict of interest under the Rules of
Professional Conduct or other law regarding
conflict of interest, provide the services
described in this Section D to the Board of
Education,   without  additional   fees  or
compensation.



                     6                         A-0517-13T1
                    2.   All ordinances inconsistent
          with this Ordinance are repealed to the
          extent of their inconsistency.

                    3.   This     Ordinance    shall   take
                           th
          effect on the 30 day following its approval
          by the Mayor and Council or, if submitted to
          and approved by the voters pursuant to
          [N.J.S.A.] 40:69A-184 et seq., on the 30th
          day following certification of the election
          results pursuant to [N.J.S.A.] 19:20-1 et
          seq.
                    4.   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.

    In   addition   to   the     ordinance,    a    proposed   question     and

interpretive   statement   for    the    election    ballot    were   drafted.

They stated:

          QUESTION.   Shall the Ordinance submitted by
          initiative petition, amending Section 3-87
          of the Jackson Township Administrative Code
          ("Department of Law") and providing for a
          full-time salaried Director of Law and other
          staff,   and   authorizing   the  Board   of
          Education to use the services of the
          Division of Law, be adopted?

          INTERPRETIVE     STATEMENT.           This Ordinance
          proposes to      amend the          Jackson Township



                                     7                                A-0517-13T1
            Administrative Code to provide for a full-
            time salaried Director of Law and other
            professional and nonprofessional staff.     It
            would also authorize the Board of Education,
            in appropriate circumstances, to use the
            legal services of the Division of Law for
            its legal needs.         The Ordinance would
            replace   the   current   system  of   relying
            exclusively     on      part-time    attorneys
            compensated by hourly rate rather than
            salary for the legal needs of the Township.
            A "Yes" vote is a vote to approve the
            Ordinance.    A "No" vote is a vote against
            the Ordinance.

      After appellants obtained the required number of signatures

for   the   petition,     they    filed   it,    and   the     municipal      clerk

presented it to the members of the Township Council, who voted

unanimously to decline to adopt it.               The ordinance would have

been placed on the ballot following the Council's action, but

after some delays not relevant to this appeal, the Mayor and

Council filed a complaint for declaratory judgment.                     In their

complaint, they alleged that provisions of the ordinance were

illegal,    including     the    provision      that   provided      for    shared

services with the Board of Education.             Appellants answered, and

the trial court disposed of the matter on cross-motions for

summary judgment after the parties briefed and orally argued

their positions.

      Recognizing    "countless      examples     of    why    the     democratic

process should be reserved to the people at all times under the

Faulkner    Act,"   the   court    nevertheless        noted    that    paragraph



                                      8                                    A-0517-13T1
1(D)(9) of the proposed ordinance conflicted with the Uniform

Shared Services and Consolidation Act (USSCA), N.J.S.A. 40A:65-1

to   -35,    which    was    enacted       "to   effectuate          agreements      between

local units for any service or circumstance intended to reduce

property      taxes    through      the      reduction          of    local     expenses."

N.J.S.A.     40A:65-2(c).           The     court       explained       that    the      USSCA

required local units to enter an agreement to share services and

concluded     "that    the    provision          of    the     ballot    question        which

compels legal services to be provided to the Board of Education

at [its] request if not approved by the Township Committee would

ultimately fall."

      Having so concluded, the court framed the dispositive issue

as whether it could "excise out that portion of the [o]rdinance

which    violates     the    shared       services       agreement."           As   to    that

issue, the court concluded that "[t]o do so the [c]ourt would

have to, in the [c]ourt's opinion, wholly change the intent of

the initiative."           The court explained that excising the shared

services section of the proposed ordinance "would remove . . .

half of the relief sought."

      The court believed that by excising paragraph 1(D)(9), the

proposed     ordinance      would     be    "eviscerated."              Explaining        that

courts      should    be    reluctant       to        impose    their    will       to    make

petitions better, in that "[t]he will of the people should be




                                             9                                      A-0517-13T1
protected     and   these      [p]etitions      should      be    recognized         as

sacrosanct,"     the    court     concluded     that      severing      the    shared

services    provision     of     the   proposed    ordinance       would      have     a

significant impact on the will of the voters.                   Consequently, the

court   declared    the   petition       and   proposed    ordinance       null     and

void.     Appellants appealed from the court's implementing order.

                                         II.

     Appellants        present     the    following       arguments        for      our

consideration1:

            I.   EVEN   IF   SUBPARAGRAPH    D(9)   OF   THE
            ORDINANCE    WERE   DEFECTIVE,     THE    ROBUST
            SEVERABILITY    CLAUSE    IN    THE     PROPOSED
            ORDINANCE      REQUIRED      THE       REMAINING
            UNCHALLENGED PORTIONS OF THE ORDINANCE TO BE
            PRESENTED TO THE VOTERS.

            II. NEW JERSEY COURTS SHOULD NOT ENTERTAIN
            PRE-ELECTION   CHALLENGES TO PARTS  OF   A
            CITIZEN INITIATIVE, AS SUCH CASES ARE NOT
            RIPE FOR RESOLUTION UNDER THE DECLARATORY
            JUDGMENTS ACT OR GENERAL PRINCIPLES OF
            JUSTICIABILITY.

     "We review de novo the grant or denial of a motion for

summary judgment."        Town of Kearny v. Brandt, 214 N.J. 76, 91

(2013).       Moreover,     the    material       facts    in    this    case       are

undisputed and this appeal presents for our review issues of law


1
  We have renumbered appellants' arguments as I and II. In their
brief, their first point heading addressed issues the trial
court decided in their favor. Respondents state explicitly that
they do not challenge those rulings on this appeal.



                                         10                                   A-0517-13T1
only.      "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. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).

      We      address           appellants'        second           argument         first.

Differentiating between "substantive" pre-election challenges to

initiative        ordinances       on     one     hand,       and     "procedural"        or

"jurisdictional" challenges on the other, appellants argue that

the courts of this State should not entertain a challenge to the

substantive validity of such an ordinance.                          Relying upon James

D. Gordon, III, & David B. Magleby, Pre-Election Judicial Review

of   Initiatives      and       Referendums,      64    Notre       Dame    L.    Rev.   298

(1989),     appellants      submit      that     such    pre-election           substantive

judicial review "involves issuing an advisory opinion, violates

ripeness      requirements,         undermines          the    policy       of    avoiding

unnecessary         constitutional              questions,          and         constitutes

unwarranted judicial interference with a legislative process."

Appellants maintain that "[r]esearch has not revealed any New

Jersey     case   where     a    court,    in    derogation         of    the    generally-

applicable principles regarding ripeness, advisory opinions, and

separation of powers, has interfered with a legislative proposal

that, as here, is only alleged to be partially invalid, and

invalid on substantive grounds, not jurisdictional."




                                           11                                      A-0517-13T1
      Appellants also argue that the courts should not entertain

pre-election           declaratory       judgment     challenges     to     proposed

ordinances       because        such   challenges      contravene     the       express

language of the Declaratory Judgments Act.

      Appellants' argument that the Declaratory Judgments Act,

N.J.S.A. 2A:16-50 to -62, does not authorize a challenge to a

pre-election initiative ordinance, has previously been rejected.

In City of Newark v. Benjamin, 144 N.J. Super. 58, 65 (Ch.

Div.), aff'd o.b., 144 N.J. Super. 389 (App. Div. 1976), aff'd

o.b.,    75     N.J.    311    (1978),    the     defendants,   in   challenging      a

proposed ordinance, "argue[d] that an action for a declaratory

judgment under N.J.S.A. 2A:16-53 is not the proper procedure

because there exists no municipal ordinance to be construed."

The     court    noted        that   there    were   several    cases     "in     which

declaratory judgments were sought before an ordinance had been

enacted.        In each of these cases the courts declared the rights

of the parties and in each held the proposed ordinance invalid."

Ibid. (citing McCrink v. Town of W. Orange, 85 N.J. Super. 86

(App. Div. 1964); Smith v. Twp. of Livingston, 106 N.J. Super.

444 (Ch. Div.), aff'd o.b., 54 N.J. 525 (1969); Twp. of Sparta

v. Spillane, 125 N.J. Super. 519 (App. Div. 1973), certif. den.,

64 N.J. 493 (1974)).




                                             12                             A-0517-13T1
       The    court    explained         that      such    decisions       carry      out    the

purpose of the Declaratory Judgments Act, id. at 65-66, which is

"to settle and afford relief from uncertainty and insecurity

with    respect       to   rights,       status      and     other    legal      relations."

N.J.S.A. 2A:16-51.              The court reasoned 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."                     Benjamin, supra, 144 N.J. Super.

at     66-67.         We        agree    with       the      reasoning      in     Benjamin.

Accordingly, we reject appellants' argument that pre-election

initiative ordinances cannot be challenged under the Declaratory

Judgments Act.

       We also decline to follow an analytical framework in which

the    result    is    determined        by     whether      a    challenge      to    a    pre-

election         initiative             ordinance           is       characterized            as

"substantive,"             as     distinguished              from     "procedural"            or

"jurisdictional."                Our    courts        have       neither    adopted         such

classifications nor used them to determine whether an issue is

ripe    for     adjudication.            See       e.g.,     Comm.    to   Recall      Robert

Menendez v. Wells, 204 N.J. 79, 101 (2010) (quoting Benjamin,

supra, 144 N.J. Super. at 66) (explaining that "when the law

giving rise to an election 'is defective on its face,' there is

'good    reason'      to    review      the     law's      validity    before      voting");




                                               13                                     A-0517-13T1
Clean Capital Cnty. Comm. v. Driver, 228 N.J. Super. 506, 510

(App. Div.) ("Ordinarily, [a] court's review of the validity of

an initiative ordinance prior to its enactment is limited to

whether it is defective on its face, or the petitioners have

failed to follow the statutory requirements."),             certif. granted

in part and denied in part and modified by, 134 N.J. 468 (1988).

Existing precedent provides our trial courts with an adequate

framework for determining whether it is appropriate to decide

pre-election challenges to initiative ordinances.

       Our opinion should not be construed as either determining

that the trial court correctly decided that paragraph 1(D)(9) of

the initiative ordinance was invalid on its face or as rejecting

as implausible the argument that paragraph 1(D)(9) could have

been    construed      as   implicitly    requiring   compliance      with    the

USSCA.     As respondents point out, those issues have not been

raised in this appeal and thus we do not consider them.

       We now turn to appellant's argument that the trial court

erred     by    not    severing   paragraph   1(D)(9)   from    the    initial

ordinance and submitting the remainder of the ordinance to the

voters.        Appellants argue that "even if subparagraph (D)(9) of

the ordinance were defective, the robust severability clause in

the     proposed      ordinance   required    the   remaining   unchallenged

portions of the ordinance to be presented to the voters."                    They




                                         14                            A-0517-13T1
reason that the severability clause "affirmatively states the

intentions      of       the   petition's         drafters,         its    signers,    and    its

voters, that they wanted the ordinance to proceed even if it was

struck down in part."                They nevertheless acknowledge that "there

is    no    clear    New       Jersey      precedent         that    applies       severability

provisions in the context of citizen initiatives."

       Respondents         contend         the    trial      court    properly       recognized

that it would be required to re-write a substantial portion of

the        initiative          petition,          including          the      question        and

interpretative           statement.              They     point      out    that    "no   legal

authority exists in New Jersey law for a court to re-write an

initiative petition through the doctrine of severability."                                   They

further contend that precedents concerning severability clauses

in statutes and ordinances enacted and adopted "simply do not

apply" to initiative petitions.                     They maintain that "even if the

severability doctrine does apply to the [i]nitiative [p]etition,

the    defective          portions         are    so    interwoven         with     the   valid

portions, the [p]roposed [o]rdinance can no longer stand."

       Whether       a    court      may    sever       an    unlawful      clause     from   an

ordinance      proposed         in    an    initiative         petition      and     order    the

excised ordinance placed on the ballot, rather than having the

petitioners begin the initiative process anew, is a question our

courts have not            answered.             The issue has received attention




                                                  15                                   A-0517-13T1
elsewhere.      The jurisdictions that have addressed it appear to

be divided along the lines of the parties to this action.                            For

instance, the Alaska Supreme Court has held that the courts of

that   state    have    the    authority     to    sever       invalid   portions     of

ordinances proposed by initiative.                McAlpine v. Univ. of Alaska,

762 P.2d 81 (Alaska 1988).          The court reasoned


            that circumspect judicial exercise of the
            power to sever impermissible portions of
            initiatives     will    promote,    rather    than
            frustrate, the important right of the people
            to enact laws by initiative.         Striking the
            entire initiative on the ground that one
            sentence     of    secondary     importance     is
            constitutionally invalid would be strong
            medicine.     Such    a   decision    forces   the
            sponsors to choose between abandoning their
            efforts altogether and submitting a new
            application and expending, for the second
            time,   the    significant    time    and   effort
            required to generate public enthusiasm and
            gather      the      requisite      number      of
            signatures. This would seriously impede the
            ability of the people to initiate laws,
            particularly when, as is often the case, the
            sponsors of an initiative are grass roots
            groups with limited resources.

            [Id. at 93 (footnotes omitted); accord City
            of Colorado Springs v. Bull, 143 P.3d 1127,
            1128 (Colo. App. 2006).]

       The contrary view, as explained in an early decision by a

California     appellate       court,   is    that       if    a   provision    in    an

ordinance      proposed       by   initiative       is        invalid,   the    entire

initiative     and     ordinance    must     be    invalidated.          Bennett      v.




                                        16                                     A-0517-13T1
Drullard, 149 P. 368 (Cal. App. 1915).    The California appeals

court explained:

         Here is a power granted unto the people, to
         propose   their   own  laws   for   adoption,
         provided certain legal procedure be followed
         to properly place said laws before the
         voters. Assume, if you please, that certain
         features are included in such proposed laws
         or in connection therewith, which appealed
         to the voter, and in fact served as the
         controlling influence inducing him to sign
         the petition.     Has he not the right to
         assume, and should not the law protect him
         in the assumption, that he will have the
         opportunity and right to vote for the
         matters which he has petitioned for? Or,
         shall the law permit the alteration of the
         measures   which    he   has   proposed   and
         petitioned for, to the extent that he will
         be unable to recognize the same when he
         comes to cast his ballot?

              In fact, is not the whole theory of
         initiative   legislation   based    upon   the
         security that the legislation proposed and
         petitioned for by the people shall be voted
         upon   at   the   polls   by   them    without
         interference, revision, or mutilation by any
         official or set of officials?

         [Id. at 370.   But see AFL v. Eu, 686 P.2d
         609, 629 n.27 (Cal. 1984) (noting that an
         earlier California Supreme Court opinion
         "left open the test of severability [for
         initiatives] in preelection review" and
         stating   that   "it   would    constitute   a
         deception on the voters for a court to
         permit a measure to remain on the ballot
         knowing   that  most   of    its   provisions,
         including those provisions which are most
         likely to excite the interest and attention
         of the voters, are invalid."); Bighorn-
         Desert View Water Agency v. Verjil, 138 P.3d
         220, 230 (Cal. 2006) ("When a significant



                              17                          A-0517-13T1
            part of a proposed initiative measure is
            invalid, the measure may not be submitted to
            the voters.").]

     Here, the parties cite to and argue the cases in other

jurisdictions       that    support    their       respective        positions.           We

choose to resolve the issue based on the Faulkner Act itself and

existing precedent in this State.

     Indisputably,         in    Faulkner    Act       municipalities       there    is    a

"strong    public    policy       favoring       the    right   of    the    voters       to

exercise their power of initiative."                    Clean Capital, supra, 228

N.J. Super. at 510 (examining an initiative ordinance under the

Optional County Charter Law).                    That policy derives from the

Faulkner Act's goal "to confer upon municipalities the greatest

possible   power     of    local     self-government          consistent      with       the

Constitution of this State."               Mun. Council of Newark, supra, 183

N.J. at 363 (citation and internal quotation marks omitted).

For that reason, "[s]tatutory provisions for initiative . . .

[should] be liberally construed to effect the salutary objective

of   popular    participation         in     local      government."          Concerned

Citizens of Wildwood Crest v. Pantalone, 185 N.J. Super. 37, 43

(App. Div. 1982).

     Those     same        considerations,         however,         mandate     minimal

judicial interference in the initiative process.                       As previously

noted,    pre-election          judicial    review       of   the    validity       of    an




                                            18                                  A-0517-13T1
initiative ordinance "is limited to whether it is defective on

its face, or the petitioners have failed to follow the statutory

requirements."       Clean Capital, supra, 228 N.J. Super. at 510;

cf. Comm. to Recall Robert Menendez, supra, 204 N.J. at 101

(noting there is good reason for pre-election judicial review

when the law giving rise to an election is defective on its

face).

      The Faulkner Act itself           supports that result.               The Act

provides that if, within twenty days of an initiative petition's

submission to the municipal clerk, the municipal council "shall

fail to pass an ordinance requested by an initiative petition in

substantially the form requested . . . the municipal clerk shall

submit the ordinance to the voters unless" the Committee of

Petitioners withdraws it.        N.J.S.A. 40:69A-191 (emphasis added).

We   agree    with   respondents     that     this    language   requires         that

initiative petitions under the Faulkner Act reach the voters in

substantially the same form as presented to the petitioners.

      Moreover, in view of the strong policies underlying the

Faulkner     Act,    courts   should    not     be    making   what    are       often

subjective decisions about the intent of voters who have signed

initiative      petitions.       This        case    illustrates      the    point.

Notwithstanding the severability clause, the parties have made

equally      plausible   arguments      about       the   significance      to    the




                                        19                                  A-0517-13T1
petition's    signatories       of   paragraph    1(D)(9)     of    the    proposed

ordinance.

      The   policies      underlying    the    Faulkner    Act     would     not   be

served by the court severing part of the ordinance based on its

subjective evaluation of the significance of the school board

and severability clauses, then rewriting the ordinance, ballot

question, and interpretative statement.                   If a voter signs a

petition in a certain form, he or she should expect to see the

proposed    ordinance      in   substantially      that    same     form   on      the

ballot.      A   court     cannot    discern     with   any      certainty      which

provisions of an initiative ordinance induced each voter to sign

it.   It is not the role of the courts to interfere with the

legislative      powers     granted     to     citizens     of     Faulkner        Act

municipalities.

      Affirmed.




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