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Lepre v. Caputo

Decided: October 2, 1974.

ADOLPH R. LEPRE, PLAINTIFF,
v.
NICHOLAS V. CAPUTO, DEFENDANT



Thomas, J.s.c.

Thomas

Plaintiff Adolph R. Lepre sought to have this court order defendant Nicholas V. Caputo, Essex County Clerk, to change his designation of plaintiff's candidacy for the Caldwell Borough Council on the November 1974 ballot from "Borough Council" to "Councilman 1-Year Unexpired Term." Plaintiff urged in the alternative that he should be permitted to amend a "defective" petition pursuant to N.J.S.A. 19:13-13, or that the order should be entered, by virtue of N.J.S.A. 19:13-12, to prevent an invasion of plaintiff's rights (denial of his right to run for the office of his choice). After a review of the verified petition and the taking of testimony, plaintiff's application was denied. An oral decision was made from the bench at the completion of the hearing so as to provide plaintiff with the ability to effect a timely appeal. This opinion supplements that oral decision.

On April 25, 1974 plaintiff filed a nominating petition with defendant seeking to be placed on the November 5, 1974 ballot as an independent candidate for councilman in the Borough of Caldwell. April 25 was the deadline for the filing of such petitions. Filing as an independent candidate

resulted in plaintiff being placed directly on the November 5 ballot, thus bypassing the primary election process.

The dispute in this proceeding arises over which council office plaintiff was seeking. In the November election the Borough of Caldwell had three vacancies for the office of councilman: two for full three-year terms and one vacancy for an unexpired one-year term. Plaintiff in his nominating petition simply stated that the "title of office" sought was "councilman."

Plaintiff contends his intent was to run for the one-year unexpired term, not for one of the full-term positions. He alleges that he had never considered running for the full three-year term, but in fact always sought the unexpired term. Plaintiff also alleges that when his petition was circulated the signers were informed that his petition was for the unexpired one-year term for councilman. Plaintiff thus sought relief from this court to "amend" the title on his petition to accurately reflect the position he sought.

Defendant placed plaintiff on the ballot for a full three-year term, the normal procedure followed when a petition with a designation such as plaintiff's is received. It is this designation which plaintiff contested. The ultimate issue which must be decided is whether the proposed change in designation is merely a correction of a defect in the nominating petition or whether in fact it is a substantive change in the office sought.

The question that first confronts this court is whether the position of councilman for the full three-year term and the position for the unexpired one-year term are two separate and distinct offices. Although there appears to be no New Jersey decision directly on point, this court finds that when, as in the present case, two similar offices are to be filled at an election, each differing only as to the term, the offices are separate and distinct. This distinction has been recognized in grouping different terms of office on the ballot. In Ehrhardt v. Bergen, 69 N.J. Super. 390 (App. Div. 1961), it was held that township committee candidates running for

the full three-year term were properly listed together on the ballot under the heading "Township Committee," while the candidates listed for the shorter term were listed as "Township Committee 2 Year Term."

Plaintiff on his nominating petition stated that the title of office sought was "Councilman" it did not state that it was for the office of "Councilman-1 Year Unexpired Term." Therefore, defendant was correct in exercising his discretion by placing plaintiff's name on the November ballot as a candidate for councilman for the full term. Hawkes v. Gate, 129 N.J.L. 5 (Sup. Ct. 1942). If plaintiff desired to run for the one-year unexpired term, he should have so stated on his petition. As the petition was submitted it showed no defect; it stated a proper office and met all other requirements for filing.

A request to amend a petition for office, as allegedly defective, after the deadline for filing the petition must be denied when the proposed amendment changes the office being sought. Changing the office designation to which one seeks election on an otherwise nondefective petition is not remedying a defect. If such an "amendment" were allowed, the opportunity for fraud would prevail. While N.J.S.A. 19:13-13 allows amendments to the nominating petition, it does so only to let a ...


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