Steven Caltabiano v. Gilda Gill

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

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

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

GILDA T. GILL,

Defendant-Respondent.
_________________________________

Submitted March 23, 2017 – Decided March 24, 2017

Before Judges Alvarez, Accurso and Lisa.

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

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

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

The opinion of the court was delivered by

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

This case requires a determination of the appropriate

timing and manner of transition to implement a reduction in the

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

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

November 2016 General Election.

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

that five freeholder positions would appear on the 2017 Primary

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

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

current freeholders would terminate on the first Monday

following the 2017 General Election. This would be followed in

the future by biennial elections of freeholders, whose terms

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

Plaintiff, Steven Caltabiano, Chairman of the Salem County

Democratic Committee, brought this action challenging the

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

contended that specific statutory provisions would be violated

by this procedure. These include a provision prohibiting, in

these circumstances, the premature termination of the terms of

sitting freeholders, and a provision requiring voter approval to

change the terms of office and frequency of election of

freeholders. In addition to seeking a judicial rejection of the

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

transition should be accomplished by placing on the 2017 ballot

only one freeholder position. Because the terms of three

freeholders expire at the end of 2017, this would fully

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

January 2018 without violating any statutory provisions.

The trial court rejected plaintiff's proposal and upheld

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

outside the legislative scheme and she acted within her

discretion. The court entered an order dismissing the

complaint.1 We now reverse.

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

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

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

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

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

were no longer constitutionally permissible. Mauk, supra, 87

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

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

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

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

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

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

this regime.

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

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

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

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

proposition in such counties to increase or decrease the number

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

nine. Such a proposition, following precisely the wording

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

General Election ballot in Salem County, followed by an

interpretative statement, as follows:

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

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

INTERPRETIVE STATEMENT

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

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

The question was approved, with approximately seventy-five

percent of the voters in favor.

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

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

A provision follows directing the method of adding members when

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

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

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

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

approval of the referendum, and thereafter, each seat shall

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

provision directs the method of reducing membership size. Nor

has any reported court decision addressed the issue.

Resolution of the issue requires interpretation of the

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

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

legal consequences that flow from established facts are not

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

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

to the extent that our ultimate determination rests upon

statutory interpretation, our review is de novo. Ibid.

The trial court, after canvassing various statutory

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

the statutory scheme. The court further concluded that the

method the Clerk selected was within her discretionary

authority. On appeal, defendant continues to argue that she

acted within her discretionary bounds. To the extent that this

issue is relevant, we set forth the applicable standard.

County clerks are entrusted by the Legislature with

significant authority in election matters. Schundler v.

Donovan, 377 N.J. Super. 339, 347 (App. Div. 2005). Recognizing

the role of county clerks in these matters and their expertise,

courts are reluctant to substitute their judgment for "the

considered choices made by the county clerks." Id. at 345.

However, in exercising discretion, county clerks must act "in

accordance with standards established by the Legislature." Id.

at 346. "In circumstances where a county clerk's discretion is

subject to review, 'it is not for a court to choose one of

several reasonable courses, for that choice is precisely what

the Legislature left to another.'" Sooy v. Gill, 340 N.J.

Super. 401, 414 (App. Div. 2001) (quoting Richardson v. Caputo,

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

discretion is not 'rooted in reason, the bounds of delegated

authority have been exceeded and it is the duty of the court to

say so.'" Ibid. (quoting Richardson, supra, 46 N.J. at 9).

In rendering its decision, the trial court found support

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

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

some historical background.

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

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

operated under a large board of freeholders, but were

nevertheless statutorily authorized to choose, by referendum, to

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

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

of this title shall be inoperative in any county until adopted

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

prescribed form of ballot question must request that voters cast

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

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

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

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 The other sections pertaining to such a referendum, i.e. to

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

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

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

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

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

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

That same phrase further appears in two other sections

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

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

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

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

establish the three-year cycle required for staggered terms of

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

40:20-21.

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

of existing members," provides:

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

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

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

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

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

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

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

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

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

their first annual stated meeting after the election of members

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

with the fact that members of large boards were chosen by

separate constituencies from districts throughout the county,

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

constituency made up of all county voters.

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

constitutional imperative after 1966, the transition from a

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

terminating existing terms of office, and beginning with a whole

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

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

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

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

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

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

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

prematurely terminating the terms of office of existing

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

same constituency.

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

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

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

membership. The Legislature saw no reason to wipe the slate

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

achieved by simply having the additional members join those

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

constituency. By this means, no duly elected freeholders would

have their terms cut short, continuity could be maintained and

major disruption avoided.

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

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

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

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

shall expire at the annual stated meeting next succeeding the

election of chosen Freeholders[] in such counties under Section

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

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

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

statutory construction, a more specific provision takes

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

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

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

the Freeholder[] Board will terminate despite the length still

remaining on those terms."

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

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

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

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

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

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

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

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

individual section, rather than quoting the full phrase

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

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

the full phrase does not refer to individual sections, but

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

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

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

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

The transition plan formulated by the Clerk, and approved

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

need to disregard these sections because they are not in

conflict with any other section in Article 2. The transition

method proposed by plaintiff would accomplish the goal approved

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

five members without prematurely terminating the terms of all of

the existing freeholders.3

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

freeholders from three to four years and changing the times for

elections from annual to biennial. These changes can only be

made by voter approval of a referendum expressly proposing the

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

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

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

Clerk's transition plan would be unlawful.4

In construing statutes, courts should give effect to each

provision and they should be "interpreted so they do not

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

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

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

provisions pertain to one set of circumstances and some to

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

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

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

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

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

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

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

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

391 (App. Div. 2005).

We are confronted here with a statutory scheme governing

Article 2 counties that contain two subsets of provisions

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

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

small boards. The other is a relatively minor change of

adjusting the membership of a small board within a very narrow

range allowable. In the former, the freeholders before and

after the change are elected by different constituencies. In

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

same constituency. Transition procedures should be designed to

effect the transitions in these respective changes smoothly,

with the least disruption possible, and in a manner that

comports with the apparent legislative intent behind the

authorization for or requirement for making the change in the

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

avoid rendering some statutory provisions meaningless and

patently violating others.

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

comport with these principles. The plan proposed by plaintiff

does.

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

discretionary authority to direct her plan. As a general

proposition, when there is no statutory mandate as to a

procedure, county clerks have discretion in how to proceed.

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

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

thus providing a basis for countenance of the discretionary

determination made.

However, we have reached a contrary conclusion, namely that

the Clerk's determination was outside the statutory scheme.

Accordingly, that determination cannot withstand the "rooted in

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

mistakenly exercised any discretion she may have had in

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

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

of the applicable statutory provisions and rules of statutory

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

aside.

Finally, we comment on the interpretive statement. Such a

statement was not needed here because the wording of the

question was perfectly clear. The fact that the interpretative

statement included incorrect information, namely that the change

from seven to five members would take effect on the Monday

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

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

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

arrangements were incidental and relatively insignificant. See

Rooney v. McEachern, 128 N.J. Super. 578, 588 (Law Div. 1974).

The judgment of the trial court is reversed. The Clerk

shall place on the Primary and General Election ballots for 2017

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

The terms of the three freeholders elected in 2014 shall expire

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

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

freeholders shall be unaffected.

16 A-2805-16T4