                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-1074-16T3

JOY DESANCTIS;1 MICHAEL SEEBECK;
PATRICIA COREA; NOREEN DEAN and
                                       APPROVED FOR PUBLICATION
JAMES BEAN,
                                              July 9, 2018
     Plaintiffs-Respondents,
                                           APPELLATE DIVISION
v.

BOROUGH OF BELMAR; MAYOR &
COUNCIL OF THE BOROUGH OF
BELMAR; COLLEEN CONNELLY,
Borough Administrator of the
Borough of Belmar; APRIL CLAUDIO,
Municipal Clerk of the Borough
of Belmar; and CHRISTINE
GIORDANO HANLON, Monmouth
County Clerk,

     Defendants-Appellants.

_______________________________

          Argued March 20, 2018 – Decided July 9, 2018

          Before    Judges     Fasciale,    Sumners     and
          Moynihan.

          On appeal from Superior Court of New Jersey,
          Law Division, Monmouth County, Docket No.
          L-3550-15.

          William W. Northgrave argued the cause for
          appellants (McManimon, Scotland & Baumann,
          LLC, attorneys; William W. Northgrave, Ted


1
  Plaintiff/respondent Joy DeSanctis passed away on January 16,
2017.
            Del Guercio, III, and Frances E. Barto, on
            the brief).

            Kenneth E. Pringle argued the cause for
            respondents  (Pringle  Quinn  Anzano,  PC,
            attorneys; Kenneth E. Pringle, of counsel
            and on the brief; Denise M. O'Hara, on the
            brief).

       The opinion of the court was delivered by

MOYNIHAN, J.S.C. (temporarily assigned).

       The Borough of Belmar, Mayor and Council of the Borough of

Belmar, Borough Administrator Colleen Connolly, and Municipal

Clerk April Claudio (collectively defendants)2 appeal from the

Law Division judgments entered against them.

       The Mayor and Council of Belmar adopted Ordinance 2015-25

on July 7, 2015, appropriating $4.1 million for the construction

of the Fifth Avenue/Taylor Pavilion3 and authorizing the issuance

of bonds and notes totaling $3,895,000 to finance part of the

construction.      After    Belmar   voters   filed     a   protest   petition

pursuant    to   N.J.S.A.   40:49-274     seeking   a   referendum     on   the



2
  The Monmouth County Clerk advised the court she would not be
participating in this appeal.
3
  Superstorm Sandy significantly damaged the original                    Fifth
Avenue/Taylor Pavilion, requiring its demolition.
4
    N.J.S.A. 40:49-27 reads in part as follows:

                 Any ordinance authorizing the incurring
            of any indebtedness, except for current
            expenses, shall become operative 20 days
                                                       (continued)


                                      2                               A-1074-16T3
ordinance, the Mayor and Council approved Resolution 2015-159 on

August 18, 2015, authorizing the placement of the referendum on

the November 3, 2015 ballot.   The resolution provided in part:

              Section 3. [The General] election shall
         have a referendum on the Ordinance.       In
         accordance   with  N.J.S.A.   40:49-10,  the
         question shall be put to the voters as
         follows:

         "To vote upon the public question printed
         below if in favor thereof mark a cross (x)
         or plus (+) in the square at the left of the
         word YES, and if opposed thereto mark a
         cross (x) or plus (+) in the square at the
         left of the word NO.

         [ ] YES   Shall an ordinance of the Mayor
                   and Borough Council of the Borough
                   of   Belmar   entitled  'Ordinance
                   2015-25,      []Bond     Ordinance
                   Providing for the



(continued)
          after the publication thereof after its
          final passage, unless within those 20 days a
          protest   against  the  incurring   of  such
          indebtedness shall be filed in the office of
          the municipal clerk, by a petition signed by
          registered voters of the municipality equal
          in number to at least 15% of the number of
          votes cast in the municipality at the most
          recent general election at which members of
          the General Assembly were elected, in which
          case such ordinance shall remain inoperative
          until a proposition for the ratification
          thereof shall be adopted, at an election to
          be held for that purpose, by a majority of
          the qualified voters of the municipality
          voting on the proposition, subject to the
          provisions of [N.J.S.A.] 40:49-10 to 40:49-
          12.



                                3                         A-1074-16T3
            [ ] NO       Construction of the Fifth Avenue
                         Pavilion in and by the Borough of
                         Belmar, in the County of Monmouth,
                         New      Jersey,      Appropriating
                         $4,100,000       Therefor       and
                         Authorizing    the   Issuance    of
                         $3,895,000 Bonds or Notes of the
                         Borough to Finance Part of the
                         Cost Thereof'; finally adopted on
                         July 7, 2015, be ratified?"

                 Section  4.   The   Clerk   is  hereby
            authorized and directed to submit this
            resolution to the county clerk so the
            process of placing a referendum on a ballot
            can begin.

The County Clerk received the resolution and public question on

August 19, 2015.5

     An     interpretive        statement      of    the     ordinance        was    not

initially     included    in     the   passed       resolution,     although         the

Borough Administrator testified before the trial court that both

she and the Mayor and Council informed a resident at the August

18   meeting    that      one     would       be    prepared.           The    Borough

Administrator also testified that, after "[i]ndividual members

of Council spoke to [her] one-on-one after that meeting, again

reiterating    their     desire    that     there    would    be   an    explanatory




5
  The trial judge indicated on the record that this date was
provided in "a certification of Bertha C. Sumick, Special Deputy
Monmouth County Clerk."   No such certification was provided in
the record on appeal, but the parties do not contest the date of
receipt.




                                          4                                    A-1074-16T3
statement,"6            she    drafted          the       interpretive        statement       and

"circulated       it"    to    the    Borough             Attorney,       Borough    Clerk    and

Mayor.     She submitted the interpretive statement – never voted

on by the Mayor and Council – which was received by the County

Clerk on August 28, 2015; it read:

            This     Ordinance     provides     for     the
            reconstruction    of    the   [Fifth]    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.      This   Ordinance   enables   the
            Borough of Belmar to finance the project
            while   obtaining    reimbursement   from   the
            Federal Emergency Management Agency (FEMA).
            The short term borrowing is expected to be
            repaid between 24 to 36 months.            This
            Ordinance was unanimously approved by Belmar
            Mayor and Council on July 7, 2015.

     Plaintiffs          DeSanctis         and        Bean        first    learned     of    the

interpretive      statement          on    September          9,    2015;     that   day     Bean

expressed to the County Clerk his concern about information in

the interpretive statement.                 The County Clerk replied to him on

September    17    that       she    did    "not          believe     there    is    any    legal

recourse    at     this       point        as        to     the     explanation       [in     the

interpretive statement] in terms of changing the ballot"; the

County Clerk mailed those ballots to the public the next day.



6
  The parties use "explanatory statement" instead of interpretive
statement.




                                                 5                                     A-1074-16T3
      Plaintiffs              filed      suit    on      September       22,       2015    seeking

judgment declaring the interpretive statement invalid because it

was never voted on by the Mayor and Council, thereby depriving

plaintiffs     and           the    public      an    opportunity       to     comment      on    and

object to its content, which contained "inaccurate, misleading

and   extraneous              information,"          presenting        another       ground       for

invalidation.                They    also     sought      removal      of    the    interpretive

statement      –        in     whole     or     part      –    from    the     ballot;      and     a

determination of their claim under the New Jersey Civil Rights

Act   (CRA),       N.J.S.A.           10:6-1     to      -2,   including       a    request       for

attorneys' fees and costs.                      We perpend Judge Katie A. Gummer's

rulings on these issues, which arise from a series of orders

that: (1) held the interpretive statement invalid because it was

not submitted to the Mayor and Council for resolution and no

such resolution was made, and because it was misleading and

contained    extraneous               information        intended      to    influence       –    not

inform   –     voters;             (2)   held    defendants           violated      the    CRA     by

depriving plaintiffs a free and fair election, thus entitling

plaintiffs         to        attorneys'       fees       and   costs;        and    (3)    awarded

attorneys'      fees          and     costs     and      prohibited         payment       from    the

Borough of Belmar's Beach Utility Fund.




                                                     6                                     A-1074-16T3
                                  I

    Judge   Gummer   found   persuasive    the   holding   in   Town    of

Harrison Board of Education v. Netchert, 439 N.J. Super. 164,

186 (Law Div. 2014), and adopted that court's conclusion that an

interpretive statement submitted to a county clerk without a

resolution by the borough council was invalid.             Echoing that

holding, which the judge found "well established and consistent

with the longstanding tradition of our State and our Country to

ensure fairness of our election system," she declared the Belmar

interpretive   statement   invalid.   As   plaintiffs   note    in   their

merits brief, the Netchert court "did not precisely articulate

the rationale for [its] holding that [interpretive] statements

that are not required by N.J.S.A. 19:3-6 must be adopted by

resolution."   We review questions of statutory interpretation de

novo.   Tumpson v. Farina, 218 N.J. 450, 467 (2014).

    We follow the well-trod trail of statutory interpretation:

               In construing any statute, we must give
          words    "their    ordinary    meaning    and
          significance," recognizing that generally
          the   statutory   language   is   "the   best
          indicator of [the Legislature's] intent."
          DiProspero v. Penn, 183 N.J. 477, 492
          (2005); see also N.J.S.A. 1:1-1 (stating
          that customarily "words and phrases shall be
          read and construed with their context, and
          shall . . . be given their generally
          accepted   meaning").       Each    statutory
          provision must be viewed not in isolation
          but "in relation to other constituent parts
          so that a sensible meaning may be given to



                                  7                              A-1074-16T3
           the   whole  of  the   legislative  scheme."
           Wilson ex rel. Manzano v. City of Jersey
           City, 209 N.J. 558, 572 (2012). We will not
           presume that the Legislature intended a
           result different from what is indicated by
           the plain language or add a qualification to
           a statute that the Legislature chose to
           omit. DiProspero, 183 N.J. at 493.

                On the other hand, if a plain reading
           of the statutory language is ambiguous,
           suggesting    "more   than   one    plausible
           interpretation," or leads to an absurd
           result, then we may look to extrinsic
           evidence,   such   as  legislative   history,
           committee    reports,   and   contemporaneous
           construction in search of the Legislature's
           intent. Id. at 492-93.

           [Tumpson, 218 N.J. at 467-68 (alterations in
           original).]

The   Legislature   provided,   in   N.J.S.A.   19:3-6,   for   both   the

mandatory and permissive inclusion of an interpretive statement:

                Any public question voted upon at an
           election   shall   be  presented  in  simple
           language that can be easily understood by
           the voter.     The printed phrasing of said
           question on the ballots shall clearly set
           forth the true purpose of the matter being
           voted upon. Where the question concerns any
           amendment to the State Constitution, or any
           act or statute or other legal titles of any
           nature, the printed phrasing on the ballots
           shall include a brief statement interpreting
           same.    In event that in any statute the
           public question to be voted upon is so
           stated as not clearly to set forth the true
           purpose of the matter being voted upon and
           no provision is made in said statute for
           presenting the same in simple language or
           printing upon the ballots a brief statement
           interpreting the same, there may be added on
           the ballots to be used in voting upon the



                                     8                           A-1074-16T3
            question, a brief statement interpreting the
            same and setting forth the true purpose of
            the matter being voted upon in addition to
            the   statement   of  the   public  question
            required by the statute itself.

Although the interpretive statement here is not mandated because

the public question does not concern a constitutional matter,

the    discrete       treatment      accorded          mandatory     interpretive

statements enlightens our analysis.

      Our   Supreme    Court    in   Gormley      v.   Lan,   observed     N.J.S.A.

19:3-6 "appears to impose [the duty to provide an interpretive

statement]     mandatorily      on   the      Legislature     itself      where   an

amendment to the State Constitution is involved," but considered

it "understandable that the Legislature might prefer to leave

that task to others.          Interpretive statements can be drafted in

an infinite variety of ways, and the Legislature may simply have

determined that arriving at an acceptable draft was not worth

the legislative energy."         88 N.J. 26, 36-37 (1981).

      The Court did not expansively treat alternate authorship of

interpretive statements.         It concluded only the Attorney General

was   vested    with    the    "discretion        to     determine    whether     an

interpretive    statement      should      be    added   to   the    ballot   under

N.J.S.A.    19:3-6,    as     well   as    the    content     of    the   statement




                                          9                                A-1074-16T3
itself," id. at 44, reading other statutes in pari materia with

N.J.S.A 19:3-67:

                  Cognate statutes in L. 1930, c. 187,
             the act that is the source for N.J.S.A.
             19:3-6,   deal   with   the   preparation   of
             referendum information to be distributed
             with   sample  ballots    (N.J.S.A.   19:14-27
             through -32). Where the referendum concerns
             a constitutional amendment, the Attorney
             General is specifically required to inform
             the Secretary of State what portions of the
             State Constitution should be printed and
             mailed to voters to help them understand
             "the relation of the amendment submitted to
             the existing constitution." N.J.S.A. 19:14-
             29,   -30.     In    addition,   the   statute
             authorizes the Attorney General to make a
             summary statement in order to inform the
             voters of the effect that adoption or
             rejection of the question will have on
             statute law or the State Constitution.
             N.J.S.A. 19:14-31.

             [Gormley, 88 N.J. at 44.]

The Court recognized that the absence of an express authorship

grant   to   the   Attorney   General    in   N.J.S.A.   19:3-6   "might   be

construed to evince an intent to vest the authority under that

section elsewhere," but reasoned "the sample ballot provisions

[of the 1930 law] reflect a pattern of legislative intent that

should be followed in interpreting [that statute]."               Id. at 45.

7
  "Statutes that deal with the same subject matter or subject
should be read in pari materia and construed together as a
unitary and harmonious whole." St. Peter's Univ. Hosp. v. Lacy,
185 N.J. 1, 14-15 (2005) (quoting In re Adoption of a Child by
W.P. and M.P., 163 N.J. 158, 182 (2000) (Poritz, C.J.,
dissenting)).



                                    10                              A-1074-16T3
If    the   Legislature,        under     N.J.S.A.          19:14-31,         granted        the

Attorney General the discretion to decide if a summary statement

should be provided to the public — and if so, the wording of

that statement — the Court saw "no reason why the Legislature

would have intended a different procedure in the case of [a]

brief interpretive statement."               Ibid.

      The Court specifically excluded the Secretary of State as

an    alternate      interpretive       statement          author,      concluding           the

Legislature invested no similar authority as that conferred on

the Attorney General.           Id. at 44.              Further, the Court observed

"that   the      Legislature     in     passing         N.J.S.A.      19:3-6        [did     not

intend]     to    authorize     one     of        its    committees         to     provide     a

conclusive interpretive statement when the Legislature itself

declined to do so."         Id. at 45.

      Likewise,      we    perceive     no    legislative            intent      to    vest    a

borough administrator or municipal attorney with the authority

to author and submit an interpretive statement with a referendum

ballot.          While    the   Attorney          General      may     do     so      when    an

interpretive statement is mandated, that authority is derived

from the statutory framework pertinent only to that scenario.

And   the   Attorney      General     may     act       only   when    the       Legislature

declines.        Kimmelman v. Burgio, 204 N.J. Super. 44, 54 n.3 (App.

Div. 1985).




                                             11                                       A-1074-16T3
       The statutory scheme also weighs against allowing a mayor

and    council    to   outsource    an        interpretive    statement.       The

referendum procedure of the Home Rule Act — pursuant to which

the protest petition here was filed — requires a clerk to submit

a petition, once it is found sufficient, "to the governing body

of    the   municipality    without    delay,"      N.J.S.A.     40:49-27b,    and

vests the governing body with the authority to "call a special

election therefor," N.J.S.A. 40:49-10.              So too, N.J.S.A. 40:69A-

120    requires    Belmar   —   a     Faulkner      Act8     Small   Municipality

government — to exercise legislative powers by council.9

       New Jersey has long recognized that governing bodies

             "must act when assembled at stated or
             special meetings, and organized with a
             president to conduct, and a clerk to record,
             its proceedings.   Such body can hardly act
             in any other manner than by ordinance or
             resolution. Every act must be by a vote of
             the members present; and, whether it is
             called an order, direction or determination,
             it is still a resolution, because it must be
             resolved on, upon a motion made by some
             member."   Dey v. Jersey City, 19 N.J. Eq.
             412, 416 (Ch. 1869).       All through our
             numerous   cases   dealing  with   municipal
             action, it will be seen that a board or body

8
    N.J.S.A. 40:69A-1 to -210.
9
  Although the "legislative power" in a Small Municipality is
"exercised by the council," "[t]he mayor . . . participate[s]
and vote[s] as other council members" and "preside[s] over all
meetings of the council."   N.J.S.A. 40:69A-120.  We therefore
refer throughout this decision to actions by both "mayor and
council."



                                         12                              A-1074-16T3
            can act only by ordinance or resolution;
            these are the alternative methods.     Any
            action of the body which does not rise to
            the   dignity of   an   ordinance,  is   a
            resolution.

            [Woodhull v. Manahan, 85 N.J. Super. 157,
            166 (App. Div.) (quoting Town of Irvington
            v. Ollemar, 128 N.J. Eq. 402, 406 (Ch.
            1940), aff'd o.b. sub nom. Irvington Nat'l
            Bank v. Geiger, 131 N.J. Eq. 189 (E. & A.
            1942) (emphasis added)), aff'd o.b., 43 N.J.
            445 (1964).]

       These         enactments      lead    us       to    conclude       that    when     the

Legislature provided the option for an interpretive statement to

"be added on the ballots to be used in voting upon [a public]

question" that does not clearly set forth its true                                   purpose,

N.J.S.A. 19:3-6 – such as the ballot containing the referendum

approved        by     resolution      of    the       Mayor    and    Council       –      that

interpretive          statement      had    to    be   approved       by   the     Mayor     and

Council.

       Such a procedure promotes government transparency, a clear

legislative aim discerned from reading the Open Public Meetings

Act (Sunshine Law), N.J.S.A. 10:4-6 to -21, in pari materia with

the statutes we here considered.                      See Polillo v. Deane, 74 N.J.

562,   574-76         (1977)   (acknowledging          the     importance     of     allowing

voters:    to        follow    the    progress         of    public    bodies       that    can

"influence in a material way a person's vote"; and to "have

access     to    the      information        considered         by    [such       bodies]    in




                                                 13                                  A-1074-16T3
arriving at [a] decision"); McGovern v. Rutgers, 211 N.J. 94, 99

(2012) (acknowledging the Sunshine Law's "clear statement of New

Jersey's public policy 'to insure the right of its citizens to

have adequate advance notice of and the right to attend all

meetings of public bodies at which any business affecting the

public is discussed or acted upon in any way'" (quoting N.J.S.A.

10:4-7)).      It is also in line with the liberal construction that

must     be   accorded      referendum           statutes    "for       the   purpose      of

'promot[ing] the "beneficial effects"' of voter participation."

Tumpson, 218 N.J. at 468 (alteration in original) (quoting In re

Referendum Petition to Repeal Ordinance 04-75, 192 N.J. 446, 459

(2007)).

       We     previously      held     the        Faulkner       Act     initiative       and

referendum      provisions,        N.J.S.A.        40:69A-184,         -185   –   which    we

characterized        as    "two    useful    instruments         of    plebiscite       power

[which] provide a means of arousing public interest" – should be

liberally      construed.          Twp.     of    Sparta    v.    Spillane,       125    N.J.

Super. 519, 523 (App. Div. 1973).                    Our Supreme Court conferred

"equally useful" status to the referendum provisions in the Home

Rule Act, N.J.S.A. 40:49-27, in holding "we have an obligation

to promote, where appropriate, its beneficial effects."                            Retz v.

Saddle      Brook,    69    N.J.     563,    571     (1976).           If,    through     the

referendum process, citizens are allowed "the right to test a




                                             14                                    A-1074-16T3
challenged ordinance in the crucible of the democratic process,"

In re Ordinance 04-75, 192 N.J. at 450; see also Tumpson, 218

N.J. at 467, we do not see that submission of an interpretive

statement       to     a    county     clerk    without      open    approval         of   the

governing       body       is   consonant      with    the   public    spirit         of    the

referendum laws.

    We want to make clear, our ruling should not be construed

to require the Mayor and Council to formulate an interpretive

statement       that       is   acceptable     to     all.    Plaintiffs          argue    the

members of the Committee of Petitioners that filed the protest

petition    were       never      informed      by    defendants     of     the      proposed

interpretive           statement       language,        depriving         them       of    "an

opportunity to object or propose alternative language" to the

interpretive statement.                While we fully agree the public should

be informed of the interpretive statement terms                                – hence our

requirement that the interpretive statement be publicly approved

– we point to the Gormley Court's perspicacious observation:

"Obviously there can be substantial dispute as to what the true

purpose    of    [a        question]    is;    indeed    there   may      be    many      'true

purposes.'"            88       N.J.   at     37.       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




                                               15                                    A-1074-16T3
it fairly interpret the public question and set forth its true

purpose.    Id. at 37-38.

    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.

    We agree with Judge Gummer that the never-formally-approved

interpretive statement was invalid.

                                      II

    Before    analyzing     whether    attorneys'      fees   and    costs   were

properly awarded to plaintiffs under the CRA, we must first

address the judge's ruling that the interpretive statement was

invalid    because   it   was    misleading    and     contained     extraneous

language; then whether defendants' actions deprived plaintiffs

of a substantive right protected by the CRA.

    In our review of the interpretive statement, we heed the

Gormley Court's caution:

            Rare is the case where the inadequacy of the
            interpretive statement will justify the risk
            of judicial intervention. That risk inheres
            not simply in the proposal of an alternative



                                      16                                A-1074-16T3
             but as well in the mere enjoining of the                         use
             of the proposed statement.        Either                         can
             readily be perceived by one side or                              the
             other as both prejudicial to their cause                         and
             partial to that of their adversary.

             [Id. at 39.]

      Our    highly          deferential       review       is    grounded        in    "settled

principles         of     law"      and     "the     glaring       inappropriateness             of

judicial management and supervision of such matters."                                     Id. at

38.         The     Court        explained,         "When        within     the        scope     of

legislatively-delegated                   authority,         administrative              agents'

actions      are    presumptively            valid,     and       where     that       authority

confers      discretion            upon    those      agents,       their     actions          will

ordinarily        not     be    overturned      by    the     courts      unless       they    are

manifestly corrupt, arbitrary or misleading." Ibid.

      The Legislature made clear its intent that an interpretive

statement     be        "a     brief      statement    interpreting          [the       proposed

public    question]          and    setting     forth       the    true     purpose      of    the

matter    being         voted    upon."       N.J.S.A.        19:3-6.        We    previously

recognized that the legislative aim was not focused on

             whether advocates on one side of the issue
             might prefer that the Act's description be
             phrased differently to better enhance their
             political position.      In short, we may
             intervene in such a circumstance only when
             the interpretive statement is so unclear as
             to preclude the voters' understanding of the
             true   purpose   of  the   question   or  so
             substantially unbalanced as to be biased.




                                               17                                        A-1074-16T3
         [McKenzie v. Corzine, 396 N.J. Super. 405,
         418-19 (App. Div. 2007).]

    As we discussed, the Gormley Court anticipated that there

can be "substantial dispute" as to a public question's "true

purposes."    88 N.J. at 37.       Even so, the Court distilled the

"simple and clear" "spirit of the statute": "the brief statement

is to be added to help the voter understand more about the

amendment than the public question tells him, for the purpose of

aiding him in his decision."       Ibid.   And it must also be fair.

Id. at 38.

    Only the last three sentences of the interpretive statement

are challenged:

         1.   This Ordinance enables the Borough of
         Belmar   to   finance   the   project while
         obtaining reimbursement from the Federal
         Emergency Management Agency (FEMA).

         2.   The short term borrowing is expected to
         be repaid between 24 to 36 months.

         3.   This Ordinance was unanimously approved
         by Belmar Mayor and Council on July 7, 2015.

Both the content and context of these sentences manifest their

misleading   nature,   rendering   the   statement   so   unclear     as   to

preclude the voters' understanding of the true purpose of the

question, and so substantially unbalanced as to be biased, thus

requiring its invalidation.




                                   18                               A-1074-16T3
      The     Borough    Administrator            testified    that    she    "was   very

careful in how [she] structured the [first] sentence because

[she] did not specifically want to say that all of the costs

would    be   reimbursed."           She    contended     she    "simply      said    [the

project would be financed] as we pursue funding" from FEMA.

But, as Judge Gummer noted, the first sentence indicates that

the     ordinance       would    enable       the     Borough     to     finance       the

construction "while obtaining reimbursement" as if reimbursement

was a foregone conclusion.                  That is misleading.              The Borough

Administrator knew the Borough was going to pursue funding; the

interpretive statement, however, disguised the uncertainty of

that funding, connoting to voters that the incurred indebtedness

would not ultimately be borne by them.

      The judge found the second sentence to be unclear because

"a voter could interpret that as meaning that everybody expects

. . . to be repaid, or that someone, some omniscient person may

expect    the   short[-]term         borrowing       to   be    repaid."        Standing

alone,    the   sentence        is   a     fair    explanation    of    the     expected

repayment schedule; we see no reason why deference should not be

extended to this provision.                To the extent, however, the second

sentence buttresses the misleading nature of the first sentence

– that the indebtedness would be repaid – we look at it askance.




                                             19                                  A-1074-16T3
      Judge Gummer credited the Borough Administrator's testimony

that the last sentence was added to the interpretive statement

"at   the    suggestion    of   certain    members    of   the   Council,     who

thought it was a matter of importance that the public know that

the   vote    on   the   referendum   was   not   contentious      or   on    the

ordinance was not contentious."             The judge found that "[t]he

only purpose . . . for that last statement was . . . a means of

persuasion to indicate to the voters that the Mayor and the

entire Council was unanimous.         It does not inform them as to the

substance of the issue put before them."             We wholly concur.

      Most of the brief interpretive statement was designed to

sway – not inform – voters in defendants' attempt to finance

construction of the pavilion.          This was their fourth attempt to

garner public support for the project.10               Despite knowing that

FEMA funds were not secured – albeit perhaps obtainable – the

Borough Administrator's wording of the               interpretive statement

conveyed to voters a misleading sense that funding was readily

available.     And the intent of the last sentence was a blatant

attempt to influence voters by presenting a unified front, in

clear   contravention      of   the   interpretive     statement    statute's

10
  According to the verified complaint, the Borough attempted to
finance construction three other times, but the attempts failed
due to judicial intervention, voter referendum and citizen
outrage, respectively.




                                      20                                A-1074-16T3
spirit and letter.11          Lest we forget, defendants submitted the

interpretive statement without a public vote.                     These actions

derogated what our Supreme Court held to be a substantive right

protected by the CRA.         Tumpson, 218 N.J. at 472-86.

       We    need     not    repeat    the     Court's     comprehensive         and

penetrating analysis in Tumpson, determining a municipal clerk

who refused to file a protest petition — proffered pursuant to

the Faulkner Act version12 — deprived the petitioners of their

substantive right of referendum under the CRA.                 Id. at 459-60,

486.     We are unpersuaded by defendants' attempt to distinguish

Tumpson.       Defendants      were    required   –   as   were     the    Tumpson

defendants under the Faulkner Act, N.J.S.A. 40:69A-185, -187, -

191, see Tumpson, 218 N.J. at 478 — to ascertain if a petition

meets the statutory criteria and, if sufficient, to place the

challenged ordinance before the voters, N.J.S.A. 40:49-27b.

       The   fact   that     the   interpretive   statement       in   issue     was

permissive     does    not    negate    that    defendants    had      a   binding

obligation to submit to the voters – once defendants chose to do

so – a statement that was fair, and not misleading and biased.

The "right to referendum is about enfranchisement, about self-

11
   Even if the defendants acted in good faith, plaintiffs are
still entitled to relief under the CRA.  Tumpson, 218 N.J. at
485.
12
     N.J.S.A. 40:69A-185.



                                        21                                 A-1074-16T3
government,   and    about    giving    citizens      the    right    to    vote     on

matters of importance to their community."              Tumpson, 218 N.J. at

480.   That       right   –   found    substantive      by    the    Court       —    is

meaningless    if    a    governing    body   can     alter     that       right     by

submitting    a     manipulative       interpretive         statement       to       the

electorate.    In determining whether the Faulkner Act referendum

provision    conferred     substantive      rights,    the    Court     applied       a

three-part test whereby

            plaintiffs must establish that (1) the
            referendum statutes were intended to confer
            a    "benefit"    on    plaintiffs   as    a
            representative class of voters of [the
            municipality]; (2) the statutory right to
            challenge an ordinance and place it before
            the voting public is not "so 'vague [or]
            amorphous' that its enforcement would strain
            judicial competence"; and (3) the Faulkner
            Act   "unambiguously  impose[s]    a binding
            obligation" on [the municipality].       Cf.
            Blessing v. Freestone, 520 U.S. 329, 340-41
            (1997).

            [Tumpson, 218 N.J. at 477 (second and third
            alterations in original).]

We note the Supreme Court has recently refined the three-part

test outlined in Tumpson to determine whether a statute confers

substantive rights for the purpose of establishing a CRA claim,

holding,

            a court must determine: (1) whether, by
            enacting   the   statute,  the   Legislature
            intended to confer a right on an individual;
            (2) whether the right "is not so 'vague and
            amorphous' that its enforcement would strain



                                       22                                   A-1074-16T3
          judicial competence"; and (3) whether the
          statute "unambiguously impose[s] a binding
          obligation on the [governmental entity]."

          [Harz v. Borough of Spring Lake, ___ N.J.
          ___,   ___  (2018)   (slip   op.  at 19-20)
          (alterations in original) (quoting Tumpson,
          218 N.J. at 475) (citing Gonzaga Univ. v.
          Doe, 536 U.S. 273, 283-84 (2002)).]

This change however does not alter Tumpson's holding that "the

Legislature,   through    the    Faulkner      Act,    clearly      intended   to

confer the right of referendum on the plaintiffs and voters of

[the municipality]."      Harz, ___ N.J. ___ (slip op. at 22).

    This was not, as defendants contend, a mere procedural act

of sending an interpretive statement to the County Clerk.                      The

drafting and submission of the misleading interpretive statement

violated the right of referendum as much as – although perhaps

more furtively – a clerk who refused to file a protest petition.

Controverting defendants' argument, plaintiffs established: the

referendum statute conferred a right on them as representatives

of the Belmar voters; the right to challenge an ordinance and

submit a question before the public is not at all amorphous or

vague;   and   N.J.S.A.      40:49-27b     –    like     its     Faulkner      Act

counterpart    –   imposes   a   binding       obligation      on   defendants.

Tumpson, 218 N.J. at 477-78.       They have proven their substantive

right, giving rise to this cause of action.




                                    23                                  A-1074-16T3
      We also reject defendants' contention that plaintiffs "were

not deprived of the benefit conferred by N.J.S.A. 40:49-27 the

power of referendum since the referendum was received, reviewed

and   put    to    a    vote       without   inclusion"         of   the     interpretive

statement.        In Tumpson, the Court ruled the municipal clerk's

refusal to file the protest petition violated plaintiffs' right

of referendum even though judicial intervention later compelled

the   filing.          Id.    at   481-84.        Here,   but    for       Judge   Gummer's

intervention,          the     interpretive        statement         would     have     been

included with the public question.                   Indeed, as the judge found,

the statement was printed in the Asbury Park Press prior to the

court's order.13             Thus defendants deprived plaintiffs of their

right   to   referendum.             "That   a    court   comes       to    [plaintiffs']

rescue does not alter the nature of the earlier governmental

deprivation or anticipated deprivation."                   Id. at 483.

      Any other arguments advanced by defendants on this issue

are   without     sufficient         merit   to     warrant      discussion        in   this

opinion.     R. 2:11-3(e)(1)(E).




13
  Counsel for the County Clerk informed the trial court that the
interpretive statement was also included with 229 vote-by-mail
ballots; although the votes were later stricken by the trial
court, the interpretive statement reached these voters.       The
court did not find this as a fact; while we have no reason to
doubt counsel, we will not consider it as competent evidence.



                                             24                                    A-1074-16T3
       We therefore agree with Judge Gummer that the interpretive

statement was invalid because it was misleading and contained

extraneous    language;       and    that    defendants'    actions    deprived

plaintiffs of a substantive right protected by the CRA.

                                       III

       Defendants     reprise       their    arguments     relating    to    the

attorneys' fees and costs awarded pursuant to N.J.S.A. 10:6-

2(f): absent a retainer agreement between plaintiffs and counsel

it was not possible to assess the reasonableness of the fees

requested; that the fees and costs were to be borne by the

Borough's beachgoers should have been considered in denying a

contingency enhancement; and "the beachgoers, as beneficiaries

of plaintiffs' efforts in this case, should bear" the awarded

fees and costs.

       We review fee determinations by trial courts with deference

and will disturb them "only on the rarest occasions, and then

only   because   of   a     clear   abuse    of   discretion."     Rendine    v.

Pantzer, 141 N.J. 292, 317 (1995); see also Packard-Bamberger &

Co. v. Collier, 167 N.J. 427, 444 (2001).              In our review of fees

awarded   pursuant     to    fee-shifting     provisions,    we   do   consider

whether the trial court "sufficiently address[ed] the factors or

the framework that [our Supreme Court] established in Rendine."

Walker v. Giuffre, 209 N.J. 124, 148 (2012).                The Court reposed




                                        25                             A-1074-16T3
discretion        in     trial      courts      to     establish       any    contingency

enhancement in fee-shifting cases.                      New Jerseyans for a Death

Penalty Moratorium v. N.J. Dep't of Corrs., 185 N.J. 137, 158

(2005).

    Just as she did throughout the case, Judge Gummer, in her

comprehensive          and    well-reasoned          oral     decision,      gave   careful

treatment    to        this   issue,        setting    forth     and    assessing      every

applicable standard in computing the lodestar fee, costs and the

contingency enhancement.              Presented with an invoice and numerous

certifications of counsel — sufficient evidence from which to

analyze this issue, notwithstanding the absence of a retainer

agreement     —        she    carefully       appraised        plaintiffs'       counsels'

unchallenged       billable         hours    and     hourly    rates,     even   excluding

excessive briefing hours; reviewed counsels' qualifications and

the high quality of the work that earned a successful result;

considered the complexity and pace of this litigation; and noted

the entirely contingent nature of counsels' compensation which

rendered     the       risk    of     non-payment       high,     before      awarding       a

lodestar fee of $36,940, costs of $1131.88 and a twenty-five

percent     enhancement.               We     agree     with     her      rationale       and

conclusions, including her determination that the voters – not

the beachgoers – of Belmar were the beneficiaries of plaintiffs'

action.    We therefore fully uphold her award decision.




                                               26                                   A-1074-16T3
Affirmed.




            27   A-1074-16T3
