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Westpy v. Burnett

Decided: February 6, 1964.

ROBERT WESTPY, PLAINTIFF-RESPONDENT,
v.
JOHN R. BURNETT, TOWN CLERK AND TOWN MANAGER OF THE TOWN OF BELLEVILLE, DEFENDANT. G. GEORGE ADDONIZIO, PLAINTIFF-APPELLANT, V. JOHN R. BURNETT, MUNICIPAL CLERK OF THE TOWN OF BELLEVILLE, DEFENDANT-RESPONDENT. ROBERT M. LATERZA AND VINCENT STRUMOLO, PLAINTIFFS-APPELLANTS, V. JOHN R. BURNETT, MUNICIPAL CLERK OF THE TOWN OF BELLEVILLE, DEFENDANT-RESPONDENT



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

[82 NJSuper Page 240] Mayor Robert M. Laterza and Councilmen G. George Addonizio and Vincent Strumolo of Belleville appeal from a judgment of the Law Division directing John R. Burnett, Town Clerk and Town Manager, to notify

the said mayor and two councilmen to resign by reason of recall petitions filed with the clerk and, if they do not resign, to fix a date for holding an election for their recall.

Plaintiff Robert Westpy instituted an action to compel the clerk to call the election. Two other separate actions were filed, one by Councilman Addonizio and the other by Mayor Laterza and Councilman Strumolo, in which the court was asked to declare the recall petitions invalid on the ground, inter alia , that they did not state a valid "cause" for removal from office, as required by N.J.S.A. 40:69A-168 and 169. The Law Division heard all of the evidence pertinent to the three matters at the one time, ruled that the petitions were valid and sufficient, and entered the judgment now under review.

All parties joined in a request that we expedite appellate review. We have done so, aided by the commendable cooperation of the parties and their respective counsel, as is evidenced by the fact that the Law Division judgment was entered on December 20, 1963 and oral argument was heard on January 27, 1964.

Certain questions argued in the Law Division as to the sufficiency of the signatures on the recall petitions and the qualifications of the signers have not been raised on this appeal. The parties have chosen to limit the issue before us to the single question, "Do the petitions for recall state valid cause for removal from office?"

N.J.S.A. 40:69A-168 provides:

"Any elective officer shall be subject to removal from office for cause connected with his office , after he has served at least one year, upon the filing of a recall petition and the affirmative vote of a majority of those voting on the question of removal at any general, regular municipal or special election." (Italics ours)

N.J.S.A. 40:69A-169 provides:

"A recall petition * * * shall set forth a statement of the cause upon which the removal is sought." (Italics ours)

The respective recall petitions herein state that removal is sought:

" for cause connected with his office , namely, that he acted in conjunction with two other councilmen to create a majority voting block which negated the value of the minority of the remaining two councilmen. This action served to nullify the effectiveness of the minority as representatives of the people. It also resulted in the usurpation of the functions of the manager and the passage of ordinances of questionable legal validity which are not in the best interests of the people of the community; this conduct being generally in violation of the spirit of the council-manager form of government." (Italics ours)

The mayor and two councilmen argue that this language does not constitute a legally sufficient statement of the cause upon which removal is sought within the intendment of N.J.S.A. 40:69A-168 and 169. They state frankly that they "do not urge that the statement of cause for removal in recall petitions should show malfeasance or nonfeasance in the criminal or administrative sense." But they contend that the statement "should show more than political criticism of majority-block voting stated in the form of vague and generalized crimination. That's what we have here, nothing more. And it's not enough." They maintain that the formation of a majority voting bloc is a fact of political life under a democratic form of government; that the majority vote always rules and thus negates the voting power of the minority; but this does not negate the effectiveness of the minority's representation of its constituents. As they put it: "The majority may overrule, but does not gag, the minority."

As to the assertions in the statement of cause that the conduct of the mayor and two councilmen "resulted in the usurpation of the functions of the manager and the passage of ordinances of questionable legal validity which are not in the best interests of the people of the community," appellants stress that "nothing is specified." From this lack of specificity, they argue that it would ...


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