NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0870-13T3

COMMITTEE OF PETITIONERS FOR

THE REPEAL OF ORDINANCE NUMBER

522 (2013) OF THE BOROUGH OF 

WEST WILDWOOD,

Plaintiff-Respondent,

v.

DONNA L. FREDERICK, ACTING

MUNICIPAL CLERK OF THE BOROUGH 

OF WEST WILDWOOD, and THE BOROUGH 

OF WEST WILDWOOD,

Defendants-Appellants.

_______________________________

Argued March 19, 2014 - Decided 

Before Judges Sapp-Peterson, Lihotz and 

Maven.1

On appeal from the Superior Court of New 

Jersey, Law Division, Cape May County, 

Docket No. L-338-13. 

Andrew J. Cafiero argued the cause for 

appellants (Cafiero and Balliette, 

attorneys; Mr. Cafiero and William J. 

Kaufmann, on the brief).

Paul J. Baldini argued the cause for 

respondent.

The opinion of the court was delivered by 

LIHOTZ, J.A.D.

 

1 Judge Maven did not participate in oral argument. She joins 

the opinion with counsel's consent. R. 2:13-2(b)

APPROVED FOR PUBLICATION

May 15, 2014

APPELLATE DIVISION

May 15, 2014
2 A-0870-13T3

In May 2013, defendant the Borough of West Wildwood 

(Borough) passed an ordinance authorizing the issuance of bonds 

to finance various capital improvements. Following publication 

of the ordinance, plaintiff, the Committee of Petitioners for 

the Repeal of Ordinance No. 522 (2013) of the Borough of West 

Wildwood, sought repeal of the ordinance via referendum. 

Petitioning Borough voters, plaintiff procured sixty-two 

signatures and submitted the petition to defendant Donna L. 

Frederick, Acting Municipal Clerk of the Borough. Frederick 

rejected the petition, identifying specific notarial defects and 

explaining plaintiff failed to comply with the applicable 

statute, which mandated names and addresses of five committee 

members be affixed to the petition when circulated. Plaintiff 

resubmitted the petition after correcting the noted 

deficiencies; however, Frederick again returned the petition

stating the corrections were insufficient to cure the defects.

Plaintiff filed a complaint in lieu of prerogative writs,

demanding presentation of the referendum to voters in the 

November 2013 election. Following a hearing, Judge Julio L. 

Mendez entered judgment directing the Borough to place the 

question challenging the ordinance on the 2013 general election 

ballot. The Borough's request to stay the order was granted. 

On appeal, Frederick and the Borough (collectively, 

defendants) challenge the Law Division's consideration of the 
3 A-0870-13T3

plaintiff's complaint, arguing the protest was untimely. 

Alternatively, defendants challenge the judge's findings on two

issues: first, that plaintiff was not required to affix the 

names and addresses of five members on the petition prior to its 

circulation; and second, that Frederick's rejection of the 

petition on the basis of notarial errors was arbitrary and 

capricious. We are not persuaded and affirm concluding a voter 

protest of a bond ordinance is governed by the procedures set 

forth in the Home Rule Act N.J.S.A. 40:49-27, which does not 

require listing the Committee of Petitioners found in the 

referendum provisions governing ordinance challenges, other than 

those for capital improvement indebtedness, in a municipality 

formed under the Walsh Act, N.J.S.A. 40:74-5. 

I.

On May 3, 2013, the Borough introduced and passed Bond 

Ordinance No. 522 (2013) (ordinance). The ordinance authorized

issuance of $470,250 in bonds to finance the cost of various 

capital improvements, including acquisition of a police sport 

utility vehicle, backhoe loader, street sweeper and skid steer; 

purchases for firefighters such as turn-out gear, flood valves, 

a hydric hose press, plasma cutter and repairs to the fire 

house; purchase of office equipment; purchase of computers, 

software, and technology equipment for the Police Department; 

purchase of office furniture for offices in Borough Hall; 
4 A-0870-13T3

replacement or upgrade of a fueling station; and acquisition of 

equipment for the Public Works Department. 

The ordinance was published in The Press of Atlantic City

on May 9, 2013. Thereafter, at a specially advertised May 20, 

2013 public meeting, the Borough passed the ordinance on its 

second and final reading. 

Plaintiff is comprised of five Borough registered voters: 

Anna M. Santora, Gerard P. McNamara, Frederick J. Schweikert, 

Herbert C. Frederick, and Anthony J. Santora. The petition 

expressed it was drawn in compliance with N.J.S.A. 40:74-5, and 

contained the names and addresses of four of the five members, 

omitting Anthony J. Santora.2 Plaintiff's members circulated the 

petition seeking to repeal the ordinance or place a referendum 

before the voters in the upcoming election. Plaintiff gathered 

sixty-two resident signatures, which exceeded fifteen percent of 

the votes cast in the preceding general election.3 Plaintiff

then filed the notarized petition with Frederick on June 7, 

2013. 

 

2 Plaintiff actually submitted eight copies of the petition, 

each containing a varying number of voters' signatures. For 

convenience we refer to documents by using the singular, 

petition. 

 

3 Enclosed with the petition was a statement from Cape May 

County reflecting the Borough's electorate cast two hundred and 

thirty-two votes in the prior general assembly election.
5 A-0870-13T3

By letter dated June 15, 2013, Frederick rejected the 

petition, listing several deficiencies. First, she noted the 

petition was "defective because the petition d[id] not have the 

required number of Members of the Committee of Petitioners as 

per N.J.S.A. 40:74-5." Second, the notarized month on two of 

the forms was illegible. Third, one form reflected a notarized 

date of May 6, 2013, which was prior to the final adoption date 

of the ordinance. Frederick explained because "the [p]etition 

was fatally flawed from the onset, . . . [it would] not be 

forwarded to the Board of Commissioners pursuant to N.J.S.A.

40:74-5." 

In response, plaintiff amended the petition. Anthony J. 

Santora's name was added below the names and addresses of the 

other four members. Also, the notary, who executed the original 

attestation, corrected the erroneous date, striking a line 

through the incorrect "May 6, 2013" and replacing it with "June 

6, 2013," the date voters signed the petition. The notary also

crossed out the illegible months and replaced them with "June,"

adding her initials to these changes. The amended petition was 

resubmitted on June 19, 2013.

Frederick found the amended petition defective and returned 

it to plaintiff on June 25, 2013. She explained the amended 

petition was merely the original petition, modified in a manner

she found unacceptable because N.J.S.A. 40:74-5 required a 
6 A-0870-13T3

petition to identify five committee members prior to gathering 

voters' signatures. Frederick concluded the mere addition of 

the fifth petitioner, after voters had executed the petition,

was insufficient. Further, Frederick took issue with the 

correction of the notarized dates, but did not explain the 

purported irregularity. 

On July 19, 2013, plaintiff filed an order to show cause 

and a verified complaint in lieu of prerogative writs demanding 

"judgment against the Borough and . . . Frederick[,] compelling 

the suspension of [the ordinance] and presentation of said 

[o]rdinance to the voters" along with compensatory damages, 

punitive damages, attorney's fees and such other relief the 

court deemed just and appropriate. Judge Mendez presided over 

the evidentiary hearing held on the return date of the order to 

show cause. Frederick and Anthony J. Santora testified. Judge 

Mendez requested the parties submit briefs and scheduled the 

matter for final argument on September 27, 2013. 

Despite the pending legal challenge to the petition's 

rejection, Elaine Crowley, the Borough's Acting Chief Financial 

Officer, prepared a "Certificate of Down Payment" and Frederick 

prepared a "Clerk's Certificate" attesting to the ordinance's 

adoption and the denial of plaintiff's protests. These forms 

were submitted to bond counsel. On July 26, 2013, the Borough 

secured and issued bond anticipation notes and Crowley executed 
7 A-0870-13T3

a "Certificate of Determination and Award," selling the notes to 

Oppenheimer & Company, Philadelphia. The same day, Oppenheimer 

wired funds to the Borough's savings account. 

In a written opinion, Judge Mendez considered plaintiff's 

complaint. He first determined relaxation of the statutory 

twenty-day period to file a protest to an ordinance was 

necessary, in the interests of justice. Reviewing whether the 

petition was valid, Judge Mendez concluded the petition, as 

corrected, should have been accepted. He directed Frederick and 

the Cape May County Board of Elections to make necessary 

arrangements to place a referendum question on the November 2013 

general election ballot. The judge memorialized his decision in 

a contemporaneous order filed October 3, 2013. Defendants' 

appeal followed. The order was stayed pending our review.

II.

On appeal, defendants challenge the court's decision, 

arguing: plaintiff's protest of the ordinance was untimely and 

its complaint should have been dismissed; the trial judge failed 

to harmonize the referendum requirements of the Walsh Act and

erroneously relied on the provisions of the Home Rule Act; and 

the court erred in finding Frederick's rejection of the petition 

was arbitrary and capricious. 
8 A-0870-13T3

As a general rule in non-jury actions, we reverse a trial 

court's conclusions that are based on factual findings so wholly 

unsupportable as to result in a denial of justice. Rova Farms 

Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). 

See also R. 1:7-4; Pressler & Verniero, Current N.J. Court 

Rules, comment 2 on R. 1:7-4 (2014). However, we afford no 

special deference to a trial judge's "interpretation of the law 

and the legal consequences that flow from established facts," 

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 

378 (1995), which are subject to our plenary review. Dep't of 

Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 

2007). 

A.

Determining the validity of a petition seeking referendum 

of the proposed bond ordinance, as well as a citizen's right to 

do so, requires review of statutes governing referenda. We will 

examine these statutory provisions below. Suffice it to say,

each requires any request for referendum must be filed within 

twenty days from the date of publication, after final passage of 

the challenged ordinance. Further, Rule 4:69-6(b)(11), which 

governs actions in lieu of prerogative writs, (including any

challenge to review a municipal resolution or ordinance 

authorizing the issuance of notes or bonds) requires a complaint 

be filed within twenty days from the date of the publication 
9 A-0870-13T3

following final passage of the ordinance. Upon the expiration 

of this twenty-day period, consideration of a challenge to a 

bond ordinance is generally barred. N.J.S.A. 40A:2-49.

Here, the second and final reading of the ordinance was 

held on May 20, 2013, with publication on May 23, 2013. 

Plaintiff filed its petition with Frederick fifteen days later. 

Frederick rejected the petition on June 15, 2013. The amended 

petition was resubmitted on June 19, 2013. It too was rejected 

and Frederick declared the ordinance operative, pursuant to 

N.J.S.A. 40:49-27(b), as of June 25, 2013, triggering 

commencement of the twenty-day period for protest. See R. 4:69-

6(b)(11) (disallowing a complaint in lieu of prerogative writs 

to challenge a bond ordinance filed more than twenty days 

following publication after final passage). However, 

plaintiff's prerogative writs complaint was not filed until July 

19, 2013. 

The trial court determined the "interests of justice" 

required enlargement of the time period to challenge the 

ordinance, as permitted by Rule 4:69-6(c), because the 

referendum concerned "important legal questions of great public 

interest." Judge Mendez found it compelling that more than 

twenty-seven percent of the total voters participating in the 

last general election had executed the petition. Also, he found 

the Borough would not be unduly prejudiced as it was on notice
10 A-0870-13T3

plaintiff intended to challenge the ordinance within the twentyday period. Moreover, the delay, in part, resulted from 

confusion regarding the propriety of procedural provisions 

relied upon by Frederick and competing authorities regulating 

correction of notarial errors. Most important, Judge Mendez 

concluded the delay in filing was very brief and should not 

stand in the way of the voters' right to decide a critical 

financial issue. Consequently, he concluded the complaint would 

not be time-barred and must be considered.

Defendants argue the judge erred because the twenty-day 

time bar must be strictly construed. We reject this contention. 

Such an interpretation would render inoperative the provisions 

of Rule 4:69-6(c), which specifically allows the expansion of 

the twenty-day period when the interests of justice require such 

a result. See Schack v. Trimble, 28 N.J. 40, 48 (1958) (stating 

Rule 4:69-6(c) "is merely an attempt to restate in the form of a 

generalized standard, decisional exceptions which had already 

been engrafted upon the rule"). 

Relaxation depends on "considerations of fairness," Borough 

of Princeton v. Bd. of Chosen Freeholders of the Cnty. of 

Mercer, 169 N.J. 135, 156 (2001), after taking into account "all 

relevant equitable considerations under the circumstances." 

Pressler & Verniero, supra, comment 7.3 on R. 4:69-6(c). As 

Judge Mendez identified, "cases involving . . . important public 
11 A-0870-13T3

rather than private interests[,] which require adjudication or 

clarification" certainly provide the equitable considerations 

for such an exception. Brunetti v. New Milford, 68 N.J. 576, 

586 (1975). See also Thornton v. Ridgewood, 17 N.J. 499, 511 

(1955) (finding laches should not be applied to a taxpayer suing 

on behalf of a municipality to prevent alleged misuse of 

municipal funds, particularly where municipal contract at issue 

was executory at the time of suit); Newark Morning Ledger Co. v. 

N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 158 (App. 

Div. 2011) (finding enlargement of forty-five-day statute of 

limitations under the Open Public Records Act, N.J.S.A. 47:1A-1 

to -13, appropriate, "coincident with the provisions of Rule

4:69-6(c)"). 

Here, the delay was merely four days and plaintiff "cannot 

be said to have slumbered on its rights." Hopewell Valley 

Citizens' Group, Inc. v. Berwind Prop. Group Dev. Co., 204 N.J.

569, 585 (2011). Further, prejudice to the Borough was minimal 

or non-existent. Plaintiff expressed its "inten[t] to exercise 

[its] right to challenge [the] ordinance," by filing a petition 

of protest putting the Borough on notice. Indeed, plaintiff's 

complaint was filed before the bond sale was effectuated, 

stripping the Borough of a claim of reliance on the period of 

repose. See, e.g., Jersey City Educ. Assoc. v. City of Jersey 

City, 316 N.J. Super. 245, 251-52 (App. Div. 1998), certif. 
12 A-0870-13T3

denied, 158 N.J. 71 (1999) ("The approval of a municipal bond 

ordinance and the complexities of preparing for the sale of 

municipal bonds must have the benefit of the repose arising from 

a statutory time-bar on continued litigation."). 

Finally, the matter raised an important public question of

the mandated procedure for voters to exercise their rights to 

seek referendum and repeal of a significant expenditure of hardearned taxpayer dollars, which would incur long-term 

indebtedness. Judge Mendez correctly considered all facts and 

circumstances, including the length of the delay, plaintiff's 

diligence, the urgency of the proposed bond expenditures and the 

right of voters in this "relatively small borough" "to have a 

say" in this government decision affecting "a relatively large 

and important portion of the [Borough's] budget[.]" See In re 

Petition for Referendum on City of Trenton Ordinance 09-02, 201 

N.J. 349, 353 (2010) ("[Referenda] is an exercise in democracy 

that profoundly affects the relationship between the citizens 

and their government by affording the people the last word if 

they choose to take a stand against the wisdom of an ordinance 

that the government has enacted."); In re City of Margate City, 

424 N.J. Super. 242, 251 (App. Div. 2012) ("A court should be 

especially reluctant to restrictively construe a statute that 

establishes a right to a public referendum regarding an 

ordinance authorizing the incurring of an indebtedness."). The 
13 A-0870-13T3

determination allowing consideration of plaintiff's complaint 

was not an abuse of discretion.

B.

"The New Jersey Constitution does not contain a referendum 

clause permitting voters to directly challenge state or 

municipal legislative enactments." In re Ordinance 04-75, 192 

N.J. 446, 459 n.7 (2007). A voter's right to do so is 

statutory. The controversy at hand examines the provisions of 

two statutes, which defendants identify as containing a

perceived incongruity in the procedural requirements necessary 

for presentation of referendum to voters. Suggesting this is 

"an issue of first impression," defendants assert the trial 

court erred by failing to harmonize N.J.S.A. 40:74-5 of the 

Walsh Act and N.J.S.A. 40:49-27 of the Home Rule Act. To 

provide necessary context, we first detail the statutory 

provisions. 

The Borough is incorporated under the Commission Form of 

Government Law, more commonly known as the Walsh Act, N.J.S.A.

40:70-1 to 40:76-27. Under the Walsh Act citizens can challenge 

an ordinance requesting its repeal or seeking a referendum, as 

follows:

If within 20 days after the final passage of 

an ordinance, except . . . ordinances 

authorizing an improvement or the incurring 

of an indebtedness, . . . a petition signed 

by electors of the municipality equal in 
14 A-0870-13T3

number to at least 15% of the entire vote 

cast at the last preceding general election 

at which members of the General Assembly 

were elected protesting against the passage 

of such ordinance, be presented to the 

board, it shall thereupon be suspended from 

going into operation and the board of 

commissioners shall reconsider the ordinance 

within 20 days of the presentation of the 

petition to the board. If the ordinance is 

not entirely repealed, the board shall 

submit it . . . to the vote of the electors 

of the municipality. . . . An ordinance so 

submitted shall not become operative unless 

a majority of the qualified electors voting 

on the ordinance shall vote in favor 

thereof.

The names and addresses of five voters, 

designated as the Committee of the 

Petitioners, shall be included in the 

petition. 

[N.J.S.A. 40:74-5.]

Also implicated in this appeal are provisions of the Home 

Rule Act. "The Home Rule Act, which applies to every 

municipality in the State regardless of the form of government 

under which it operates, was enacted in 1917. L. 1917, c. 152." 

Margate City, supra, 424 N.J. Super. at 245. The Home Rule Act

establishes a right to a public referendum regarding any 

ordinance authorizing the incurring of indebtedness. N.J.S.A.

40:49-27.4 This provision states in pertinent part:

 

4 We further note N.J.S.A. 40:49-9 addresses a right to a 

public referendum with respect to any ordinance authorizing 

improvements.
15 A-0870-13T3

Any ordinance authorizing the incurring of 

any indebtedness, except for current 

expenses, shall become operative 20 days 

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[.]

[Ibid.]

As set forth above, plaintiff's petition identified it was 

prepared pursuant to N.J.S.A. 40:74-5 of the Walsh Act; however, 

the original document included only four names and addresses of 

voters, "designated as the Committee of the Petitioners," rather 

than the statute's compulsory five. Judge Mendez determined the 

designation of five members was unnecessary because the protest 

challenged an ordinance authorizing capital improvement 

indebtedness, a subject specifically excluded by challenges 

pursuant to N.J.S.A. 40:74-5 of the Walsh Act. In addition, he 

relied on N.J.S.A. 40:49-27 of the Home Rule Act, which contains 

no requirement to identify the petitioners who are rallying a 

protest of a municipal indebtedness ordinance. 
16 A-0870-13T3

Defendants argue Judge Mendez erred in concluding a

petition for referendum of an indebtedness ordinance was 

governed solely by the Home Rule Act, with no Committee of 

Petitioners requirement. They assert the referendum provisions 

of the Walsh Act and the Home Rule Act must be read in pari 

materia, such that a petition for referendum under the Home Rule 

Act must also comply with the Committee of Petitioners 

requirement in N.J.S.A. 40:74-5 when submitted to the Clerk of a 

Walsh Act municipality. We are not persuaded.

The "overriding objective in determining the meaning of a 

statute is to 'effectuate the legislative intent in light of the 

language used and the objects sought to be achieved.'" McCann 

v. Clerk of Jersey City, 167 N.J. 311, 320 (2001) (quoting State 

v. Hoffman, 149 N.J. 564, 578 (1997)). "It is a cardinal rule 

of statutory construction that full effect should be given, if 

possible, to every word of a statute." Id. at 321 (internal 

quotation marks and citation omitted). While statutory language 

"'is the surest indicator of the Legislature's intent[,]'" 

Lipkowitz v. Hamilton Surgery Ctr., LLC, 415 N.J. Super. 29, 35 

(App. Div. 2010) (quoting Alan J. Cornblatt, P.A. v. Barow, 153 

N.J. 218, 231 (1998)), it is also incumbent that we "harmonize 

the individual sections and read the statute in the way that is 

most consistent with the overall legislative intent." Fiore v. 

Consol. Freightways, 140 N.J. 452, 466 (1995). 
17 A-0870-13T3

Importantly, "[t]he referendum provision in the Home Rule

Act is . . . useful and important, and [the courts] have an 

obligation to promote, where appropriate, its beneficial 

effects." Retz v. Saddle Brook, 69 N.J. 563, 571 (1976). In 

the context presented here,

[a] court should be especially reluctant to 

restrictively construe a statute that 

establishes a right to a public referendum 

regarding an ordinance authorizing the 

incurring of an indebtedness. The New 

Jersey Constitution recognizes that there is 

a particularly strong need for public 

participation, in the form of a referendum, 

in a legislative decision to incur 

indebtedness.

[Margate City, supra, 424 N.J. Super. at

251.]

This court recently examined whether the Home Rule Act 

applied to a Walsh Act municipality when voters filed a petition 

for a public referendum challenging an ordinance authorizing 

municipal indebtedness. See Margate City, supra, 424 N.J. 

Super. at 246. In Margate City, we examined both statutes and 

determined the referendum provision of the Walsh Act, N.J.S.A.

40:74-5, specifically excludes "ordinances authorizing an 

improvement or the incurring of an indebtedness," while the Home 

Rule Act, N.J.S.A. 40:49-27, is directed to repealing "any 

ordinance authorizing the incurring of an indebtedness." 

Margate City, supra, 424 N.J. Super. at 246-48. We rejected the 

trial court's restrictive reading of N.J.S.A. 40:74-5, as 
18 A-0870-13T3

prohibiting citizens in a Walsh Act community from exercising 

the right to petition for repeal of indebtedness ordinances. 

Id. at 248. We concluded the Walsh Act provision, N.J.S.A.

40:74-5, as now constituted, was intended to codify the Supreme 

Court's holding in Wethling v. Bd. of Comm'rs of the City of 

Orange, 94 N.J.L. 36 (Sup. Ct. 1920), and the Home Rule Act 

applied to Walsh Act communities. Margate City, supra, 424 N.J. 

Super. at 248. In doing so, we concluded Wethling's holding 

remained unchanged: a referendum on an ordinance authorizing the 

incurring of indebtedness is governed by the Home Rule Act, 

N.J.S.A. 40:49-27. Id. at 246, 248 (citing Wethling, supra, 94 

N.J.L. at 38-39). We held:

the evident intent of the 1937 revision [to 

N.J.S.A. 40:74-5] was to preserve the 

applicability of the Home Rule Act 

requirements for obtaining a referendum 

regarding an ordinance authorizing the 

incurring of an indebtedness rather than to 

completely abolish the right of [Walsh Act] 

municipal residents to petition for a public 

referendum regarding such ordinances.

[Id. at 250.]

Although Margate City did not specifically examine the 

procedural Committee of Petitioners requirement at issue here, 

this court concluded the Legislature was aware of the statutes 

it adopted and well-understood the provisions for referendum in 

the two statutes were not identical. Id. at 246-50.
19 A-0870-13T3

Here, Judge Mendez closely examined the language of the 

Home Rule Act and rejected defendants' argument that the 

omission of the Committee of Petitioners requirement was a mere 

legislative oversight. Contrary to defendants' suggestion, we 

find no error in Judge Mendez's conclusion that the statutory 

distinctions were purposeful. 

The Home Rule Act is restricted to indebtedness challenges 

and includes precise procedures particularly suited to the type 

of bond ordinance being protested. The Home Rule Act favors 

taxpayers, because they must bear the financial burden of bond 

ordinances long after the municipal officials who agreed to 

incur debt have departed public office. As noted by Judge 

Mendez, if the Legislature intended to add the Committee of 

Petitioners requirement to the Home Rule Act referendum 

procedures added in 1986, it could have done so. 

It is firmly established that "'[t]he Legislature is 

presumed to know the law.'" David v. Gov't Emps. Ins. Co., 360 

N.J. Super. 127, 143 (App. Div.), certif. denied, 178 N.J. 251 

(2003). Certainly, the Legislature is conversant with its own 

enactments, particularly when a statute is considered for 

amendment. Therefore, the Home Rule Act's absence of a 

requirement to identify a five-member Committee of Petitioners 

when protesting a bond ordinance was not an accident or an 

oversight. To the contrary, the Home Rule Act's exclusion of 
20 A-0870-13T3

the Committee of Petitioners requirement for a public referendum 

challenging a municipality's decision to incur long-term debt 

was decisive and in keeping with "the public policy favoring 

voter participation in a legislative decision to incur 

indebtedness." Margate City, supra, 424 N.J. Super. at 251. 

Indeed, this view aligns with the State Constitution's 

recognition of a "strong need for public participation, in the 

form of a referendum, in a legislative decision to incur 

indebtedness." Ibid. See also N.J. Const. art. 8, § 2, ¶ 3 

(setting forth the Debt Limitation Clause, which provides any 

statute authorizing state indebtedness "shall [not] take effect 

until it has been submitted to the people at a general election 

and approved by a majority of the legally qualified voters of 

the State voting thereon").

Following our review of the relevant provisions of the 

Walsh Act and the Home Rule Act, we conclude the referendum 

procedures contained in the Home Rule Act, governing challenges 

to indebtedness ordinances do not require listing petitioners. 

Therefore, we reject defendants' challenge essentially for the 

reasons set forth in Judge Mendez's written opinion. 

Having determined plaintiff fulfilled the requirements of 

N.J.S.A. 40:49-27(a) to -27(c), the petition should have been 

accepted. Further, the ordinance should have remained 
21 A-0870-13T3

inoperative until ratified or repealed at the next general 

election. N.J.S.A. 40:49-27. 

C.

Defendants' last argument seeks reversal of the finding 

that Frederick arbitrarily and capriciously rejected plaintiff's 

petition for notarial defects. Although Frederick properly 

identified the notary errors in the petition as originally 

submitted and informed plaintiff of the deficiencies, she did 

not inform plaintiffs how to address the defects. In 

particular, Frederick did not instruct plaintiffs that the 

corrections required execution of a new notarial act affixed on 

a newly prepared document. She did not explain plaintiff would 

again need to acquire signatures from voters supporting the 

petition. Further, Frederick's subsequent rejection of the 

corrected petition also made no mention of the basis of her 

objection to the notary's corrections, exhibiting an 

unreasonable exercise of her discretional authority. See

D'Ascensio v. Benjamin, 142 N.J. Super. 52, 55 (App. Div.) ("In 

the absence of such statutory direction, a clerk has the 

discretionary power to adopt any rational means of performing 

his [or her] duty, subject to judicial review to determine 

whether he [or she] has abused his [or her] discretion and acted 

in an arbitrary manner."), certif. denied, 71 N.J. 526 (1976). 
22 A-0870-13T3

Defendants argue Frederick reasonably supported her 

decision to reject the petition by relying on a provision of the 

New Jersey Notary Handbook, Chapter 8—Prohibited Acts and 

Penalties, which states in pertinent part: 

The New Jersey Notary Section lists these 

prohibitions for notaries:

1. You may not pre-date a notarial 

certificate to a date earlier than the 

date on which the corresponding 

document was executed. 

. . . .

13. A notary should not amend a notarial 

certificate after the notarization is 

complete. If the notary fails to 

complete the notarial certificate with 

all the elements required by law while 

the person is present, the certificate 

should not be changed later. Instead, 

a new notarial act with a new notarial 

certificate is necessary.5

Plaintiff, on the other hand, identified information supplied by 

the National Notary Association stating that when a notary errs 

in "completing certificate wording, the best way to correct the 

error is to line through the mistake, write in the correct 

information, and initial and date the correction so that anyone 

 

5 New Jersey Notary Handbook (Am. Soc'y of Notaries, 11th ed.

1999-2012). 
23 A-0870-13T3

receiving the document knows who corrected the certificate and 

when."6 

Judge Mendez found fault with Frederick's handling of this 

issue stating, "if a clerk desires an amendment to comply with a 

specific guidance manual to the exclusion of other guidance 

materials, she or he must communicate this desire to the voters 

at the time of rejection." We agree. 

Contrary to defendants' assertions, Frederick did not 

provide plaintiff guidance or direction on how and why she 

believed correction of the identified deficiencies should be 

achieved. She merely noted the defects without further comment. 

In rejecting the corrected petition, Frederick provided no 

specificity as to the problem with the notarial amendments; she 

summarily explained that "the subsequent correcting of the 

notarized dates by the notary [was] also flawed." Frederick's 

unexplained rejection was an arbitrary and capricious exercise 

of her authority, which impeded the Borough voters from 

exercising a fundamental right of participation in their 

governance. After all, "the 'right of referendum' should be 

liberally construed to further 'the legislative policy of 

 

6 Notary Bulletin, Nat'l Notary Ass'n, http://www. national 

notary.org/bulletin/best_practices/quiz_answers/corrections.html

(June 1, 2011). 
24 A-0870-13T3

encouraging citizen interest and participation in local 

government.'" In re Ordinance 04-75, supra, 192 N.J. at 455 

(quoting Menendez v. City of Union City, 211 N.J. Super. 169, 

172 (App. Div. 1986)). 

Following our review, we affirm the October 3, 2013 order 

substantially for the reasons set forth by Judge Mendez in his 

written opinion. R. 2:11-3(e)(1)(A). The imposed stay of the 

order is vacated.

Affirmed.