Can a New Jersey county or town put a non-binding referendum on the ballot asking voters what they think about state tax law or state spending?

Plain-English summary

In August 1990, several New Jersey counties and municipalities passed resolutions asking the Secretary of State to put non-binding referenda on the November ballot. The questions would have asked voters their views on recently enacted state tax reform measures and on the level of state government spending. Secretary of State Joan Haberle asked the Attorney General whether these referenda were lawful.

Attorney General Robert J. Del Tufo answered no. Under N.J.S.A. 19:37-1, the only statute that authorizes local non-binding referenda, a county or municipality may only ask voters about matters that pertain to its own government or internal affairs, and only on subjects within the proposing body's actual jurisdiction. State taxes and state appropriations are committed by the New Jersey Constitution to the Legislature and the Governor. Counties and towns have no authority to act on those subjects, so they cannot use the local-referendum statute to take a public-opinion poll about them.

The opinion follows the New Jersey Supreme Court's 1989 decision in Bd. of Chosen Freeholders v. Szaferman, which had struck down a county-level referendum asking voters about state automobile insurance reform on the same reasoning.

What this means for you

If you are a county clerk or municipal clerk

When a county freeholder board or town council hands you a resolution asking you to print a non-binding referendum on the November ballot, your gatekeeping question under this opinion is: does the subject of the referendum fall within a power the proposing body actually has? If the question is about state tax law, state appropriations, federal policy, or something controlled by another level or branch of government, the referendum is not authorized by N.J.S.A. 19:37-1, and you should refuse to place it. The Secretary of State asked precisely this question and the Attorney General said no.

If you are a county freeholder, mayor, or council member

The non-binding-referendum statute is narrower than people often assume. You can use it to test public sentiment on questions you can actually do something about: a local ordinance you are considering, a local capital project, a question pertaining to the internal affairs of your government. You cannot use it as a megaphone to ask voters what they think about Trenton or Washington, even if state or federal policy affects your budget. The Supreme Court has rejected the argument that mere "budgetary impact" is enough to make a state issue local.

If you are a New Jersey voter or community organizer

If a county or town is being asked to put a referendum on the ballot about state tax policy, federal immigration policy, abortion, or any other issue committed to a different government, this opinion supports challenging the placement. The remedy is to ask the Secretary of State or county clerk to refuse the question, or to file suit. If you want to express public sentiment about state policy, the constitutional channels are voting in state elections, lobbying the Legislature, or pursuing a constitutional amendment.

If you are an election attorney

The two-part test from Szaferman and reinforced here is: (1) the referendum question must be about a matter pertaining to the government or internal affairs of the proposing body, and (2) the proposing body must have the power to act on it. Failure of either prong defeats the referendum. The opinion also confirms that the Legislature retains exclusive constitutional authority over state appropriations and state-level taxation, even though it has delegated some taxing authority to municipalities.

Common questions

Q: Can my town hold a non-binding referendum on a local ordinance?
A: Yes, when the question deals with the government or internal affairs of the municipality and the council has the power to act on the underlying issue. That is the core use the statute was designed for.

Q: What if a state policy directly costs my county money? Can the county put it on the ballot?
A: No. The Supreme Court rejected this exact argument in Szaferman. Mere budgetary impact does not convert a state issue into a county issue. If it did, "any county could use its non-binding-referendum authority to elicit public opinion on issues related to welfare, court administration, law enforcement, and a myriad of other subjects that are statutorily committed to government at the state level."

Q: Who decides whether a proposed referendum question is authorized?
A: In practice, the county clerk and the Secretary of State serve as gatekeepers when ballots are being prepared. A challenge can also be brought in court. In Szaferman and Camden County Bd. of Chosen Freeholders v. Camden County Clerk, courts ordered the questions removed.

Q: Does this stop a town from holding any kind of advisory vote?
A: It stops the town from doing it through the official ballot under N.J.S.A. 19:37-1 unless the subject is within the town's authority. Towns can still hold informal surveys, town-hall meetings, or mailers, none of which are governed by the election ballot statute.

Q: Are there other ways to get a binding statewide referendum on a New Jersey ballot?
A: New Jersey has no general statewide initiative or referendum process. The state constitution does provide that proposed constitutional amendments approved by the Legislature go to the voters. Statutory state-tax policy itself is not subject to direct citizen referendum under current New Jersey law.

Background and statutory framework

New Jersey, unlike about half the states, has no constitutional initiative or referendum process at the state level. Proposed amendments to the state constitution must come from the Legislature before going to the voters, and statutes are not subject to citizen-driven repeal at the ballot box. The local non-binding-referendum statute, N.J.S.A. 19:37-1, is the only general mechanism for asking voters their opinion on a question through the ballot, and it is sharply limited.

The statute lets a county or municipal governing body adopt a resolution requesting that the county clerk print a question on the next general election ballot. Two conditions are written into the text: there must be no other statute providing a way to put the question to voters, and the question must be about "any question or policy pertaining to the government or internal affairs" of the county or municipality. The New Jersey Supreme Court has tightened that language by adding what amounts to an authority requirement: the proposing body must actually have power to act on the underlying subject.

That tightening came to a head in 1989 when Mercer County's freeholders tried to put a question on the ballot about state automobile insurance reform. Insurance reform was a hot political issue, and counties saw it as a chance to pressure Trenton with a public-opinion mandate. The Supreme Court in Szaferman held the question off the ballot, explaining that the legislature "never intended the non-binding-referendum procedure to be used to test public opinion in the abstract or to ascertain the public's views on controversial or timely issues outside the province of the governing body soliciting them."

This 1990 opinion applies Szaferman squarely to questions about state tax reform and state appropriations. The constitutional baseline is that under Article VIII, Section II, Paragraph 2, the Legislature controls state appropriations and the requirement of a balanced state budget; under Article V, Section I, Paragraph 15, the Governor has line-item veto power. The Supreme Court has long held that the underlying authority to impose taxes rests in the Legislature, even where the Legislature has delegated taxing power to local government for specific purposes (Robinson v. Cahill; Salomon v. Jersey City). State taxes and appropriations are therefore matters where local government has no power to act, and a non-binding ballot question about them is not authorized.

Citations and references

Statutes and constitutional provisions:
- N.J.S.A. 19:37-1 (non-binding referenda)
- N.J. Const. (1947), Art. VIII, § II, ¶ 2 (state appropriations; balanced budget)
- N.J. Const. (1947), Art. V, § I, ¶ 15 (Governor's line-item veto)

Cases:
- Bd. of Chosen Freeholders v. Szaferman, 117 N.J. 94 (1989), controlling authority; non-binding referenda must address subjects within the proposing body's jurisdiction
- Fields v. Hoffman, 105 N.J. 262 (1987), Legislature's particular responsibility over election matters
- Botkin v. Mayor and Borough Council of Westwood, 52 N.J. Super. 416 (App. Div. 1958), appeal dismissed, 28 N.J. 218, local government cannot propose referendum on independent local school district affairs
- Santoro v. Mayor and Council of South Plainfield, 57 N.J. Super. 307 (Law Div.), aff'd, 57 N.J. Super. 498 (App. Div. 1959), city council had no authority to solicit voter sentiment about local sewerage authority
- Camden v. Byrne, 82 N.J. 133 (1982), appropriations authority resides in Legislature
- Robinson v. Cahill, 62 N.J. 473 (1973), fundamental taxing authority is legislative
- Salomon v. Jersey City, 12 N.J. 379 (1953), same
- Camden County Bd. of Chosen Freeholders v. Camden County Clerk, 193 N.J. Super. 100 (Law Div.), aff'd, 193 N.J. Super. 100 (App. Div. 1983), county budget directives of state Chief Justice not within county's internal affairs

Source

• Original PDF: https://www.nj.gov/oag/oag/ag%20opinion%201990-2.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF NEW JERSEY
DEPARTMENT OF LAW AND PUBLIC SAFETY

ROBERT J. DEL TUFO
ATTORNEY GENERAL

August 28, 1990

Honorable Joan M. Haberle
Secretary of State
315 W. State Street
CN 300
Trenton, New Jersey 08625

Re: FORMAL OPINION NO. 2-(1990): Placement on General Election Ballots of Non-binding Referenda Regarding Statewide Tax Reform Measures.

Dear Secretary Haberle:

You have asked whether local governing bodies may place on the upcoming General Election ballot non-binding referenda regarding recent State tax reform measures and the level of State appropriations for government purposes. For the reasons set forth below, you are advised that such questions are not properly included on the ballot since they do not deal specifically with any question or policy pertaining to the internal affairs of the governmental bodies proposing the resolutions, and because the issues for which voters' sentiment are sought are not matters with respect to which the governmental bodies have the power to take direct action.

The State Constitution does not provide for any procedure to ascertain directly citizens' viewpoints on public policy issues. However, the Legislature, in furtherance of its particular responsibility over election matters, Fields v. Hoffman, 105 N.J. 262, 271-272 (1987), has adopted a statutory provision which permits non-binding referenda at the local level under certain specific and limited circumstances. That statute, N.J.S.A. 19:37-1, provides:

When the governing body of any municipality or of any county desires to ascertain the sentiment of the legal voters of the municipality or county upon any question or policy pertaining to the government or internal affairs thereof, and there is no other statute by which the sentiment can be ascertained by the submission of such question to a vote of the electors in the municipality or county at any election to be held therein, the governing body may adopt at any regular meeting an ordinance or a resolution requesting the clerk of the county to print upon the official ballots to be used at the next ensuing general election a certain proposition to be formulated and expressed in the ordinance or resolution in concise form. Such request shall be filed with the clerk of the county not later than 74 days previous to the election. (emphasis supplied)

This provision has been consistently interpreted as limiting the scope of the referenda authorized by the statute to subjects actually and specifically encompassed within the definite jurisdictional authority of the particular governmental body proposing the referenda and is designed to test voter sentiment on well-defined and concrete public issues. In capsulizing the intent of this provision, the State Supreme Court has observed that:

the legislature never intended the non-binding-referendum procedure to be used to test public opinion in the abstract or to ascertain the public's views on controversial or timely issues outside the province of the governing body soliciting them. [Bd. of Chosen Freeholders v. Szaferman, 117 N.J. 94, 104 (1989)].

The parameters of N.J.S.A. 19:37-1 were most recently construed by the Supreme Court in Bd. of Chosen Freeholders v. Szaferman, supra. There, the County Freeholders enacted a resolution placing a referendum question on the General Election ballot, asking voters if the Freeholders should advise the Legislature to take certain actions regarding various issues involving automobile insurance. The Court held under the statute that the referendum question did not pertain to matters involving the government or internal affairs of the county and, for that reason, the referendum question could not be included on the ballot. The Court rejected the argument that the county's expenditure of funds for automobile insurance costs and its interest in minimizing the size of its budget expenditures were sufficient reasons to justify the referendum question. Said the Court:

By that standard, any referendum question that addressed a subject related to municipal or county budgets would be authorized, whether or not it was within the sphere of municipal or county government. If the governmental-interest test were satisfied merely by a budgetary impact, then any county could use its non-binding-referendum authority to elicit public opinion on issues related to welfare, court administration, law enforcement, and a myriad of other subjects that are statutorily committed to government at the state level and beyond the scope of county governmental responsibility. [Id. at 106.]

In supporting its interpretation of N.J.S.A. 19:37-1, the Court observed that matters of insurance reform are matters of statewide significance committed to State government. Permitting local governments to place non-binding referenda on the ballot for matters involving statewide issues would thus be contrary to the more limited intentions of the statute. Accord, Botkin v. Mayor and Borough Council of Westwood, 52 N.J. Super. 416 (App. Div.), appeal dismissed, 28 N.J. 218 (1958) (local government body had no authority to propose a referendum regarding affairs of independent local school district); Santoro v. Mayor and Council of South Plainfield, 57 N.J. Super. 307 (Law Div.), aff'd, 57 N.J. Super. 498 (App. Div. 1959) (city council had no authority to solicit voters' sentiment with respect to affairs of local sewerage authority, a distinct local government unit).

In this matter, you have advised that a number of counties and municipalities have passed resolutions authorizing referenda intended to solicit voter sentiment with respect to recently enacted State tax reform legislation and with respect to proposals to reduce State government spending. The central question to be resolved is whether these referenda involve matters in which these local governmental units have "the power to act." Botkin, 52 N.J. Super. at 433. If not, then there is no authority vested in these local government units under N.J.S.A. 19:37-1 to propose such non-binding referenda for inclusion on the General Election ballot.

Matters of State tax and budget policies, although they concededly could have a significant impact on local governments, are matters plainly "committed to government at the State level." Bd. of Chosen Freeholders v. Szaferman, 117 N.J. at 106. Under the State Constitution, it is the Legislature and the Governor who have been constitutionally charged with the responsibility and authority to make appropriations, to establish appropriate levels of State spending and to provide for a balanced State budget. N.J. Const. (1947), Art. VIII, § II, ¶ 2; Camden v. Byrne, 82 N.J. 133 (1982). See also, N.J. Const. (1947), Art. V, § 1, ¶ 15 (line-item veto power vested in the Governor). Similarly, although the Legislature has delegated to local governments the authority to tax in some cases, the underlying fundamental authority to impose taxes resides exclusively in the Legislature. Robinson v. Cahill, 62 N.J. 473, 497 (1973); Salomon v. Jersey City, 12 N.J. 379, 383-84 (1953). It is therefore self-evident that the non-binding referenda involving State taxes and State spending concern matters of State and not local authority and may not be placed on the ballot pursuant to N.J.S.A. 19:37-1. Accord, Camden County Board of Chosen Freeholders v. Camden County Clerk, 193 N.J. Super. 100 (Law Div.), aff'd, 193 N.J. Super. 100 (App. Div. 1983) (county non-binding referendum addressing budget directive of the Chief Justice of the Supreme Court of New Jersey did not implicate county's internal affairs or pertain to its governance within the meaning of N.J.S.A. 19:37-1).

In sum, local governments may not place non-binding referenda on the General Election ballot under N.J.S.A. 19:37-1 where the subject matter of the referenda does not touch on matters "pertaining to the government or internal affairs" of the proposing local government entity. Here, non-binding referenda soliciting voter sentiment with respect to recent State tax reform legislation and reductions in the level of State appropriations are clearly matters committed to the exclusive jurisdiction of State government and are not matters with which the local governments have the power to act. For these reasons, such non-binding referenda may not properly be included on the ballot for the upcoming General Election.

Sincerely,

ROBERT J. DEL TUFO
ATTORNEY GENERAL