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Musto v. Leone

Decided: March 20, 1972.


On appeal from the Superior Court, Appellate Division.

For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. Hall, J., concurs and files opinion. Hall, J. (concurring). Mountain, J., concurs in result.

Per Curiam

This case involves a recall of the five commissioners of the City of Union City. Pursuant to N.J.S.A. 40:75-34 each incumbent filed a petition that the recall question be placed upon the ballot. Under the statute, the ensuing election would call (1) for a separate vote as to whether each incumbent should be recalled and (2) for the election of successors for such of the incumbents as may be recalled. The voters thus vote upon successors although at the time of the balloting they cannot know how many incumbents, if any, will be recalled. Pursuant to N.J.S.A. 40:75-32 the parties initiating the recalls filed nominating petitions. In each petition one nominee was designated to succeed one named incumbent. The incumbents did not file nominating petitions, they assuming the petitions opposing the recall served also to nominate them to succeed themselves or each other.

Two suits emerged: (1) by the incumbents to strike the nominating petitions of the challengers on the ground that each nominee must run, not to succeed a single incumbent, but rather against all nominees with respect to all incumbents who may be recalled at the election, and (2) a suit by the challengers attacking the ballot as proposed by the Municipal Clerk upon which the incumbents were to be listed as candidates to succeed themselves or each other in the event they are removed by recall.

As to the first suit, the trial court held that under Grubb v. Wyckoff, 52 N.J. 599 (1968), each nominee must run against the field with respect to all vacancies in the offices of commissioner arising from the recall and hence each petition was defective in seeking to run the candidate for election to the office of one specified incumbent, but the trial court held the probable intent of the signers was to nominate the candidates for all such offices to be filled and hence the petitions sufficed. The Appellate Division affirmed, and we denied a petition for certification.

As to the second suit, the trial court held that since the incumbents had failed to file nominating petitions under N.J.S.A. 40:75-32, they could not appear on the ballot as candidates for election if they are removed by the recall. The Appellate Division affirmed, and we granted the petition for certification.

The timetable was demanding. The trial court decided the cases on Monday, February 23, 1972. The Appellate Division heard and decided the appeals on Friday, March 3, 1972. On the afternoon of that day we advised counsel of our action on the petitions for certification already mentioned, and that the appeal would be heard on Monday, March 6, 1972, the day before the scheduled election. Upon the conclusion of the argument we announced our decision orally so that the election could proceed as scheduled. This opinion is filed to record our reasons.

An incumbent is removed by a majority vote. We pointed out in Grubb, supra, that the recall statute was obscure with respect to an office to which a nominee may be elected by a mere plurality vote. In such circumstances, if an incumbent could not run to succeed himself, the plurality voters who had elected him at the initial election would be denied an opportunity to choose him even though he could again best the field on a plurality basis.*fn1 We pointed out in that connection that a recall need not be based upon a "cause" which would disqualify an incumbent from holding office. We noted, too, that if the candidates defeated at the initial election on a plurality basis could by the aggregate support of their several constituencies achieve the elimination of the victor by recall, there might be undue incentive

to recall for no reason other than to enable the defeated candidates to seek the office under circumstances made more favorable by the elimination of the strongest man in the original contest. Since the Legislature must be presumed to have intended the ultimate will of the voters to prevail,*fn2 we concluded the incumbent may be nominated to succeed himself at the recall election so that the voters who wanted him could choose him again if their choice prevailed on the plurality basis.

We held also in Grubb that where it was sought to recall more than one incumbent of equivalent offices, the electorate was entitled to have all candidates run against each other for all the vacancies created by the recall, and hence the nominating petition may not be limited to less than all the offices involved in the recall movement. It was for this reason that the challengers' nominating petitions in the present matter were defective on their faces, although we agree with the trial court and the Appellate Division that the probable intent of the signers that their nominees run on that basis was so evident that to strike the petitions would disserve the basic philosophy that the voters be afforded an opportunity for an unfettered expression of their will.

For like reasons the petitions filed to contest the recall of the incumbents suffice to nominate them to succeed themselves. The probable intent of the signers was to keep the incumbents in office, either by defeating the recall or by a plurality vote in the contest to succeed them. Hypothetically, a signer of the petition might want his man to be ousted if a majority ...

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