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In re Petition of Thomas F. X. Smith

Decided: April 28, 1971.


Lewis, Matthews and Mintz. The opinion of the court was delivered by Lewis, P.J.A.D.


This consolidated proceeding embraces three appeals from four separate orders of the Law Division regarding the recent effort of the Citywide Independent League (C.I.L.) and the Community Action Council (C.A.C.), two civic and political organizations of the City of Jersey City (city), to recall the mayor and seven of the nine councilmen of the city. The matters here under review have come before us as the result of numerous motions and petitions seeking emergent relief, leave to appeal and the consolidation and acceleration of the several appeals involving the mayor and two ward councilmen.

In view of the complexity of the proceedings and particularly because the major issues raised are of first impression in this State, a recital of the significant events productive of this litigation is essential.

On January 11, 1971 the C.I.L. filed a petition with Thomas F. X. Smith, the municipal clerk of the city (clerk), seeking the recall of Mayor Thomas J. Whelan, Ward Councilmen Thomas F. McGovern, Aniello R. Pecoraro, Francis Quilty and William Massa, and Councilmen-at-Large Thomas Flaherty, John Jaroski and John Kelaher. The latter five incumbents did not participate in these proceedings. The petition directed against Mayor Whelan was subscribed by 30,362 signatures. The petition directed against McGovern contained 5,945 signatures, and the petition directed against Pecoraro contained 3,384 signatures.

On January 29 the clerk certified the results of his examination of the Whelan petition. He reported that of the signatures filed, only 17,089 were acceptable in tabulating the 26,870 signatures required to effect the mayor's recall. It was his conclusion that the required number, statutorily prescribed

by N.J.S.A. 40:69A-169 as "(25%) of the registered voters of the municipality," represented 25% of the registered voters of the city on November 3, 1970, the date of the last general election in the city.

The clerk notified the C.I.L. of the deficiency so as to enable it to amend the original petition within the ten-day period allowed by N.J.S.A. 40:69A-170. On February 8 the C.A.C., with the permission of the C.I.L., filed a separate petition containing 22,037 signatures as an amendment to the original C.I.L. petition. The following day the clerk made a motion before Judge Larner of the Law Division for a declaratory judgment concerning the permissibility of the amendment procedure. At the hearing thereof on February 10 the court determined that inasmuch as the petitions represented the will of the signers, i.e. , the voters-at-large, and not that of the groups soliciting the signatures, and because the statements of the grounds for recall were substantially the same in both petitions, the consolidation of the two petitions by way of an amendment was permissible. An appropriate order to that effect was entered February 17. On February 25 a notice of appeal from that order was filed by Mayor Whelan.

On February 11 the clerk certified the results of his examination of the C.I.L. petitions against the ward councilmen. His report recited that of the 5,945 signatures filed against McGovern, only 2,447 were validated. This sum fell short of the required 5,296 signatures. Additionally, the clerk's report stated that of the 3,384 signatures filed against Pecoraro, only 1,101 were validated, thus failing to meet the required number of 3,019. Again the clerk notified the C.I.L. that its petitions were deficient.

On February 21 the C.A.C. filed two other separate petitions, this time as an amendment to the original petitions against McGovern and Pecoraro. The next day McGovern and Pecoraro instituted a suit seeking injunctive and declaratory relief to restrain the clerk from examining or otherwise

acting upon the petitions seeking their recall, on the grounds that the C.A.C. amendment was impermissible and that the C.I.L. petitions were so permeated with fraud as to be invalid in their entirety. After the matter was heard, the Law Division, on February 27, denied their application. In doing so Judge Larner indicated that his previous determination of the clerk's original motion for a declaratory judgment, involving the Whelan petitions, was dispositive of their contention regarding the permissibility of the amendment. Additionally, he noted that the fraud alleged would not serve to vitiate the entire petition, notwithstanding that such fraud might prove to be extensive, on the theory that the electorate-at-large should not be penalized for the misconduct of particular individuals. He distinguished his decision from those cited cases wherein petitions were totally invalidated, on the theory that there the perpetrators of the fraud were candidates for the offices involved.

On March 1 McGovern and Pecoraro sought leave from this court to appeal from the February 27 order of the Law Division. Thereafter, on March 4 we entered an order granting emergent relief, directing the clerk to refrain from certifying the validity of any petitions or fixing a date for a recall election until further ordered.

On March 3 the Law Division enjoined the clerk from fixing a date for the recall election of the mayor pending a final determination of his appeal to this court. On March 5 we entered an order which directed the clerk to announce the results of his examination of the petitions against the mayor but restrained him from certifying those results and from fixing a date for recall. The order further provided that oral argument of the mayor's appeal would be heard on March 23. On March 6 we directed that the McGovern and Pecoraro motion for leave to appeal also be listed for argument on that date.

Subsequently, the C.A.C. filed its notice of motion for leave to appeal from two orders of the Law Division dated

March 5 and March 11, whereby it was respectively determined that the relevant percentage of the voters of the city was to be computed with reference to the date of the last general election and that the affiants required to attest to the petition sheets circulated in the city wards had to be residents of those wards. The C.A.C. also submitted a petition to this court for emergent and other relief related to said order. On March 12 we granted leave to appeal from the orders of March 5 and March 11 and set down a hearing for March 30. Thereafter, on March 17, the C.I.L. submitted a petition for leave to appeal which, in due course, was granted.

Oral arguments were heard on March 23 and 30, 1971, and on the latter date, with the consent of all parties, this court sua sponte ordered that the several instant appeals be consolidated; an appropriate order has been filed. Hereafter, for convenience of reference and except as otherwise provided, the C.A.C. and C.I.L. shall be designated as petitioners and the mayor and councilmen shall be referred to as incumbents.

Essentially, this appeal requires the resolution of the following four issues: (1) whether the consolidation of the C.I.L. and C.A.C. petitions qualifies as an amendment within the meaning of N.J.S.A. 40:69A-170; (2) whether the presence of fraud in certain C.I.L. petition sheets, as occasioned either by the actions of the solicitors of signatures, the statutory affiants attesting thereto or the signers of the petition, or all of the above, invalidates the entire petition; (3) whether the date of the last general election preceding the filing of the petitions is the appropriate standard with reference to which the relevant percentage of "registered voters" is to be computed, and (4) whether the affiant of a petition seeking the recall of a ward councilman is required to be either a signer of the petition or a resident of the ward, or both.

Preliminarily, we note that our determinations in these respects substantially accord with those expressed in the several oral opinions of Judge Larner for the Law Division. We shall consider the issues seriatim.


In substance, incumbents argue that the provision of N.J.S.A. 40:69A-170, allowing the amendment of petitions, does not embrace the consolidation of two separate petitions. Their contention is meritless and their reference to generally unrelated statutory provisions in support of a contrary conclusion is not helpful.

As used in common parlance, the word "amend" has been broadly defined to include such activities as: to repair, to restore, to free from faults, to alter in any way, and to improve. Webster's New International Dictionary (2d ed. 1959). It is plain that the manner of performing these activities can include addition or subtraction. To exclude one or the other is manifestly unreasonable. Cf. United States v. Lapp , 244 F. 377, 383 (6 Cir. 1917). Specifically, with regard to amendment by addition, it has been observed that the words and processes described by addition and amendment may "be regarded as roughly or even accurately interchangeable." O'Pry v. United States , 249 U.S. 323, 330, 39 S. Ct. 305, 307, 63 L. Ed. 626 (1919). Furthermore, it has also been noted that even an act independent and original in form (the ...

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