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Carroll v. Cobb

Decided: February 23, 1976.

FRANCIS CARROLL, WILLIAM TORTORIELLO AND JOHN ALMY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILIARLY SITUATED, PLAINTIFFS-RESPONDENTS,
v.
CAROL COBB, CLERK OF WOODLAND TOWNSHIP, AND BURLINGTON COUNTY BOARD OF ELECTIONS, DEFENDANTS-APPELLANTS



Fritz, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

[139 NJSuper Page 442] These are consolidated appeals by Carol Cobb, Clerk of the Township of Woodland, and the Burlington County Board of Elections from a final judgment*fn1 entered in the Law Division directing the board to accept and process voter registration forms completed by five of the persons listed in the class of plaintiffs,*fn2 and to

permit them to vote in the November 1974 election; and to allow the remaining 28 persons in the class to register to vote and, if they satisfactorily completed the voter registration form, to vote in the said election.

The named plaintiffs and the class they represent are (or were at the time of the events leading to this litigation) adults living at the New Lisbon State School for the mentally retarded. On September 30, 1974 five of them, accompanied by Gary S. Zambor, the Director of Education at the school, went to Mrs. Cobb's office to apply for registration as voters. It is not controverted that she was authorized to accept such registration under N.J.S.A. 19:31-7. She told them at first that they could not register without a court order; however, after telephoning the county board of elections she said they would be allowed to do so if they could answer the questions on the form,*fn3 but (according to the testimony of Mr. Zambor, and not denied by Mrs. Cobb), she would not process the registrations until she received "clearance from her solicitor." Whether and to what extent the five had any problems with the questionnaire was in dispute at the hearing below; in any event, the forms were filled in and signed.

On October 3 a "busload of people" from the school who came to register were unable to do so because Mrs. Cobb was not available at the time. Later, when someone telephoned her in their behalf, she stated that she had been instructed by "her solicitor" and the county board of elections not to permit those persons to register without a court order.*fn4

The Public Advocate then filed a complaint in lieu of prerogative writs and for declaratory relief alleging that of

the plaintiffs in the class, all of whom were evaluated pursuant to N.J.S.A. 30:4-25.3 and 25.4 and N.J.S.A. 30:4-165.5 and found not to be mentally deficient or incapable of managing themselves and their affairs, 15 had been evaluated as "dull normal" and the remainder as "mentally retarded." It was further alleged that Mrs. Cobb informed plaintiffs that she had been instructed not to permit the men to fill out the voter registration forms and to void those that had been previously completed, on the ground that they were "idiots or insane persons and thus precluded from exercising their right of suffrage due to the mere fact of their residence at New Lisbon State School." Plaintiffs sought a judgment, among other things, (1) ordering the township clerk and the county board to register all the members of the class and permit them to vote in the November 1974 election; (2) ordering defendants to "cease and desist" from any conduct or act which would "inhibit, impair or discourage" plaintiffs from exercising their right to vote, and (3) declaring the named plaintiffs "to be representatives of the class of all residents present and future of New Lisbon State School who otherwise qualify to vote and have not been declared to be incompetent."

An order was obtained directing defendants to show cause why the relief sought in the complaint should not be granted. On the return day of the order, after hearing testimony and considering the arguments of counsel, the trial judge said:

From what I have heard here, I am firmly convinced that the reason why those men were not permitted to vote was the hostility that the Municipal Fathers and even the County Board of Election had against people who were confined to such a school. I don't think that they really were concerned about their idiocy or their insanity because it hasn't been satisfactorily proven that these persons were in that category at all.

On the further issue of residence, the trial judge, holding that the Worden case (Worden v. Mercer Cty. Bd. of Elections , 61 N.J. 325 (1972)), gave "all powers to the people

in their right to vote," resolved the issue in favor of plaintiffs.

The thrust of the municipal clerk's argument on appeal is essentially two-fold: (1) that plaintiffs were ineligible to vote because they were not residents of Woodland Township, and (2) that they were further disqualified by constitutional and statutory provisions denying the right of suffrage to any idiot or insane person.*fn5

The county board of elections contends that (1) county boards have the power and the duty to determine whether residents of state schools for the mentally retarded possess the requisite mental competency to vote, and where a county board determines an applicant to be disqualified the burden of proof rests upon the applicant in a subsequent judicial proceeding to establish his right to vote, and (2) persons living at State schools for the retarded who seek to register to vote are required to furnish information sufficient to show they are "residents" of the election district within the meaning of the Constitution (N.J. Const. (1947), Art. II, par. 3; and N.J.S.A. 19:14-1).

We intend to decide only those issues projected by the record before us. There are others, presented and argued in the respective briefs, which are of such breadth and importance that their resolution should be put aside to await an appropriate case. The issues which require our consideration in this case are relatively narrow, though by no means unimportant. We shall address ourselves later to the issue of plaintiffs' residence. The threshold problem pertains to the functions and ...


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