Judge Rules In Favor of Liquor Referendums

A Superior Court judge ruled Friday against Moorestown resident William Cox’s lawsuit to block liquor referendums from the ballot. Cox has said he will appeal.

In his suit, Cox, a commercial litigation attorney, argued by Moorestown Mall owner PREIT (Pennsylvania Real Estate Investment Trust) violate state statute 33:1-45, which regulates alcohol-related referendums and imposes a five-year waiting period between referendums.

Moorestown voters rejected a similar referendum on liquor licenses in 2007, voting it down 4,202-2,559.

However, Judge Ronald Bookbinder’s interpretation of the law differed from Cox’s. He cited its specific wording, which states referendums have to wait five years if they are “pursuant to this section” of the statute.

The 2011 referendums, because they’re worded slightly different from the 2007 question, are presented under a different section of the state statute. That means the five-year rule doesn’t apply, said Bookbinder.

The judge said his interpretation is backed up by the Legislature, the Appellate Division, and former Gov. Alfred Driscoll—who in 1949 rejected a change to the law that would have bundled several liquor statutes together. The change would have imposed a blanket five-year rule for any referendum under any of those statutes. Instead, Driscoll broke them up so each section had its own five-year rule.

Bookbinder told Cox, “If I go with (your) argument, I’m overruling the Legislature, I’m overruling the governor, I’m overruling the Appellate Division.”

The liquor statutes also impose the five-year rule on “all ordinances, resolutions or regulations inconsistent with” a preceding (successful) referendum.

What that means: Voters rejected liquor licenses (under 33:1-45) in 2007. Township council can’t pass a resolution or an ordinance contrary to that result for five years (and since council can’t unilaterally approve the sale of alcohol, they couldn’t do it after five years either).

Cox argued the resolutions directing the county clerk to put PREIT’s referendums on the ballot were inconsistent with the 2007 referendum results.

But Bookbinder countered by again saying the 2011 questions fall under a different statute than those in 2007, so council’s resolutions are not inconsistent.

“The first thing they put in (the statute) was ordinances. They weren’t even worried about resolutions,” said Bookbinder. “And they didn’t say in here, which they could have, ‘resolutions putting referendums on the ballot pursuant to the other sections of this law.’ They didn’t do any of that. You want to put words in the law, which I don’t think is the job of a trial court judge.”

Cox replied, “I’m merely asking you to interpret the words that are there.”

In an effort to persuade the judge, Cox invoked what he felt was his strongest argument: By taking PREIT’s and the township’s positions, a municipality could place liquor referendums on the ballot every election year, as long as they fell under different statutes.

“It’s hard to imagine that the Legislature, when they approved this, intended … the citizens of towns to be subjected to annual referendums, even if they are slightly different,” said Cox. “Fundamentally they are referendums on the legality or illegality of the sale of alcoholic beverages. You could have a minority faction in a town year after year subjecting that town to a referendum trying to change its status. That would just eviscerate the protections of the five-year rule.”

However, Bookbinder stood by his assertion it was not his role to “expand the law” beyond the parameters already set by the Legislature and the courts.

“Maybe it’s good for the future for somebody to go to the Legislature,” he conceded, “or maybe a higher court wants to change it.”

Immediately following Bookbinder’s decision, Cox announced he would appeal. Later that afternoon he submitted an application to expedite the appeals process.

“I want to get this heard before the (Nov. 8) election,” Cox said. “If it proceeds along the normal channels, I won’t get before a judge before the election.”

He said he expected to find out the appellate judge’s decision soon, but didn’t know exactly when.