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Clark v. De Fino

Decided: July 16, 1979.

JOHN B. CLARK AND JOHN TOMASIN, PLAINTIFFS-APPELLANTS,
v.
ANTHONY M. DE FINO, PAUL A. ERBACH, JAMES F. LANGAN, JOSEPH P. OLIVETI, SALVATORE MOLLICA AND TERRY FOLEY, RAYMOND F. GABRIEL (ADDED DEFENDANT), DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal -- None. The opinion of the court was delivered by Sullivan, J.

Sullivan

This appeal presents the question whether defendant, Anthony M. DeFino, the Surrogate of Hudson County, was in violation of either the New Jersey Constitution, the statutory or common law of this State, or the Code of Judicial Conduct as implemented in our Rule 1:17-1, by running for reelection for the office of Commissioner of the Town of West New York.

The facts are not in dispute. Mr. DeFino is the Surrogate of Hudson County, having been elected to that office in November 1976 for a five-year term while also serving as a Commissioner of the Town of West New York. In March 1979, prior to the expiration of his term as Commissioner, he was nominated to run for reelection to that municipal office in an election to be held on May 8, 1979. The present suit was filed in the New Jersey Superior Court, Law Division, in April 1979 challenging Mr. DeFino's nomination and candidacy on the ground that as Surrogate, he was a judge and a court clerk and was not eligible to be a candidate for another elective public office.

New Jersey has a statute, N.J.S.A. 2A:11-2, pertaining to a judge seeking public office. Prior to November 1978 it provided:

A judge of any court of this state, who becomes a candidate for an elective public office, thereby forfeits his judicial office, but this section shall not apply to a surrogate seeking reelection.

This statute had been applied to Mr. DeFino in a prior suit filed against him in the same court in 1975 when he also ran for reelection as a Commissioner of West New York. Then too, he was serving as Surrogate of Hudson County, having been elected to that office in November 1974. In that suit the court, in an oral decision, ruled that the provisions of N.J.S.A. 2A:11-2 applied to a surrogate, except where he was seeking reelection as surrogate. It therefore held that Surrogate DeFino by running for another elective public office had forfeited his office as Surrogate.*fn1

Thereafter, Governor Bryne appointed Mr. DeFino to fill the surrogate vacancy on an interim basis. See N.J.S.A. 2A:5-7. DeFino ran for Surrogate in the next general election held in November 1976 and, as noted, was elected for a full five-year term. During this entire period he also held office as a Commissioner in West New York.

In 1978 the Legislature amended N.J.S.A. 2A:11-2 by striking out the words "seeking reelection" so that the statute, as amended, reads:

A judge of any court of this State, who becomes a candidate for an elective public office, thereby forfeits his judicial office, but this section shall not apply to a surrogate.

The amendment became effective November 22, 1978.

In the general election of November 1978, the electorate approved a constitutional amendment ...


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