“Capable of Repetition Yet Evading Review”: A Mess Involving Referendum Statutes

Finkel v. Hopewell Tp. Committee, 434 N.J. Super. 303 (App. Div. 2013).  This case involves the principle of “capable of repetition yet evading review” to defeat a mootness argument.  That principle was made famous by Roe v. Wade, 410 U.S. 113 (1973), the abortion rights case.  In the present case, Judge Sabatino applied the principle, reached the merits of this dispute about ‘the ambiguous interrelationship of several referendum provisions within the New Jersey election statutes,” and gave useful guidance for the parties and others who will operate under those statutes going forward.  The mootness issue arose because the referendum at issue had already occurred and the municipal governing body had already acted on the policy issue posed by the referendum.

Judge Sabatino concisely encapsulated the issues on appeal as follows:  “[W]e consider whether a proposed question on a non-binding local referendum may be placed on a ballot when the municipality has failed to submit the proposal to the county clerk within 81 days before an election as required by N.J.S.A. 19:37-1, but has submitted the proposal within the 65-day deadline separately set fotth in N.J.S.A. 19:37-2.  As part of our analysis, we also consider whether a governing body’s non-compliance with the 81-day deadline in N.J.S.A. 19:37-1 conflicts with the local citizens’ interests, as protected by N.J.S.A. 19:37-1.1, in having sufficient time to react to a referendum that has been proposed to be placed on the ballot.”  The panel ruled that both statutory deadlines must be complied with, and that the failure to meet the 81-day deadline invalidated the referendum.  That ruling reversed the Law Division, which had rejected the challenge to the referendum.

Judge Sabatino first addressed, and rejected, the suggestion that the appeal be dismissed as moot.  “The appeal before us presents a significant public question and affects a matter of clear public interest.  Objectively and realistically considered, the matter is also very capable of repetition but evading review.”  The interplay of these referendum statutes affects electoral processes that are at the core of our democracy,” not “mere technical niceties that are purely of academic concern to political junkies and political scientists.”  Moreover, given the short timeframes involved, citizens would rarely if ever have the time to bring litigation before a referendum vote.  Thus, violations of these referendum statutes might never be reviewable.  The remedy of an after-the-fact declaratory judgment, which Judge Sabatino proceeded to discuss, was a perfect vehicle in these circumstances.

Citing fundamental principles of statutory interpretation, and after canvassing the rather difficult history of the two statutes and prior caselaw addressing those enactments, Judge Sabatino concluded that the Legislature intended that “the deadlines within the present statutory scheme must all be scrupulously honored.”  The 81-day deadline in particular “actually protects the citizenry and promotes the opportunity for voters to respond effectively to a proposed referendum.”  Judge Sabatino thus rejected any notion that enforcement of the 81-day deadline “would unduly deprive voters of their franchise or … render an election void for technical reasons.”