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Fitzgerald v. Mathesius

Decided: April 11, 1975.

HERBERT FITZGERALD, PLAINTIFF,
v.
WILBUR H. MATHESIUS, ACTING PROSECUTOR OF MERCER COUNTY, DEFENDANT



Schoch, A.j.s.c.

Schoch

[136 NJSuper Page 93] This is a matter brought by complaint in lieu of prerogative writs in which plaintiff demands judgment on the first count for an order requiring defendant to delete certain portions of the Manual of Rules and Regulations

promulgated by the Office of the Prosecutor of Mercer County, and an order prohibiting the prosecutor from dismissing plaintiff if and when plaintiff files a nominating petition for public office; and further, on the second count seeks to enjoin defendant from promulgating any further regulations that might bar plaintiff from seeking election to a public office.

The facts in this case are not in dispute.

Plaintiff has been employed as a county detective in the Mercer County Prosecutor's Office for more than seven years. He is a registered member of the Republican Party and wishes to file a nominating petition for the June 3, 1975 primary wherein he seeks to be a Republican candidate for the General Assembly from the 13th Assembly District, in the general election to be held in November 1975. Defendant has informed plaintiff that participation in the political elective process, namely, the filing of a petition for the June 3 primary, will constitute a violation of the aforesaid rules and regulations and will result in plaintiff's suspension or dismissal from employment in the Prosecutor's Office. Plaintiff moves for summary judgment.

The thrust of the complaint is that the defendant is (1) violating plaintiff's constitutional rights by enforcing these regulations, and (2) the regulations themselves are without any legal foundation, and consequently should not be, and cannot legally be, enforced by defendant.

The regulations toward which this complaint is directed are:

3:3.5 Political Activity -- Members of the investigative staff shall

not exhibit any election posters, signs or cards on any

vehicle used in connection with their duties in the Prosecu-

tor's Office.

3:3.5-1 Members of the investigative staff shall not ...


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