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Roman v. Sharper

Decided: March 5, 1969.

WALTER ROMAN, PLAINTIFF-RESPONDENT,
v.
HORACE P. SHARPER, INTERVENOR-APPELLANT, V. HARRY REICHENSTEIN, CITY CLERK OF THE CITY OF NEWARK, NEW JERSEY, AND CITY OF NEWARK, NEW JERSEY, A MUNICIPAL CORPORATION, DEFENDANTS



For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None.

Per Curiam

A petition for the recall of the councilman elected from the South Ward of the City of Newark was filed with the City Clerk, who, finding the petition sufficient, notified the incumbent that a recall election would be scheduled. This suit was brought to restrain the election. The trial court gave judgment for plaintiff upon the ground that the signatures were insufficient in number. We certified the appeal before argument in the Appellate Division.

The City of Newark is governed by the Optional Municipal Charter Law. The statute provides, N.J.S.A. 40:69 A -169:

"A recall petition * * * shall be signed by qualified voters equal in number to at least twenty-five per centum (25%) of the registered voters of the municipality * * *."

Under some of the plans of government created by that statute, councilmen are elected from wards, and that is the case in Newark. The recall petition was signed by 11,300 of the registered voters of the South Ward, which exceeds 25% of the total of 30,155 such voters of that ward, but is less than 25% of the total registered voters in the City, who number 136,861. The trial court held that the petition must be signed by at least 25% of the total registered voters of the City. Upon one reading of the statute, the view of the trial court could be said to be correct, but we think the result is at odds with the sense of the situation.

Plaintiff contends that "qualified voters" means only "registered voters." Upon that reading, a recall could be initiated by voters who reside outside the ward and who therefore could not vote for the recall or for a successor if the incumbent is recalled. Possible constitutional questions aside, there is no reason to suppose the Legislature intended anything so unique. Still upon that reading of the statute, it could be beyond the power of all of the registered voters of a ward to initiate a recall of their councilman, and that would be so here since the total registered voters of the South Ward number less than 25% of the registered voters

of the City. It would be strange to deny the power to initiate a recall to the voters who alone can vote upon the recall question.

There of course is no constitutional right to recall officeholders, and the Legislature, if it wishes to provide that mechanism, can specify rational restraints upon it. We should assume the Legislature intended a reasonable approach, and we should construe the statute to provide one if we can. It being clear the Legislature intended to invest the power of initiation in 25% of a group of voters, the problem is to identify that group. Sensibly the group should be the group that can vote to recall and to elect a successor. In the case of a ward election, that group of course is the electorate of that ward and not the electorate of the entire City.

To read the statute as does the plaintiff would delete the words we italicize:

"A recall petition * * * shall be signed by qualified voters equal in number to at least twenty-five per centum (25%) of the registered voters of the municipality * * *."

Thus excised would be the words "qualified voters," which we think embody the decisive concept. In this context, "qualified voters" must mean those voters who are qualified to vote at the recall election. The preceding section, N.J.S.A. 40:69 A -168, reads:

"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 ...


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