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Seligson v. De Bruin

Decided: April 1, 1980.


Petrella, J.s.c.


[174 NJSuper Page 61] This application in an election matter*fn1 was brought before the court on April 1, 1980 by plaintiffs for an order seeking relief from the fixing by defendant Fair Lawn borough clerk of the June 3, 1980 primary election date as the date for a referendum to allow the registered voters in Fair Lawn to vote on a proposed change of government in Fair Lawn. Based on the nature of the relief sought, this court considered plaintiffs' application for relief in aid of the judgment heretofore entered by the court on January 18, 1980. That judgment was affirmed March 17, 1980 by the Appellate Division of the Superior Court. Both decisions are unreported.

A brief background discussion will provide a frame of reference for these proceedings. By at least October 1979 petitions were circulated in Fair Lawn seeking to place on the ballot the question of reversion to the prior form of government in the Borough of Fair Lawn pursuant to N.J.S.A. 40:69A-25. Two sets of petitions were filed on November 2, 1979 with the borough clerk, one set by plaintiffs and another by a group referred to as the League of Women Voters. Plaintiffs designated themselves a "committee," but the court held that was neither necessary nor required in this type of petition, relying on Pappas v. Malone , 36 N.J. 1 (1961).

The borough presently operates under a form of municipal government referred to as the "Faulkner Act -- Plan E." N.J.S.A. 40:69A-114.1 et seq. On November 2, 1979 petitions were presented to defendant borough clerk for filing, purportedly signed by 4,255 registered voters.*fn2 Thereafter, the borough clerk failed to act within the 20-day period required by N.J.S.A. 40:69A-187, which period expired November 23, 1979, not counting Thanksgiving, which fell on the twentieth day. N.J.S.A. 19:11-1. On November 27, 1979 the borough attorney, with telephone notice to one plaintiff on November 26, sought an ex parte order on behalf of the borough clerk by applying to this court for an extension of time until December 7, 1979 to certify the sufficiency or insufficiency of the petitions. Noting that the application was ex parte and made after the 20-day period had already expired, the court concluded it was without authority

under D'Ascensio v. Benjamin , 137 N.J. Super. 155, 160 (Ch.Div.1975), aff'd 142 N.J. Super. 52 (App.Div.1976), certif. den., 71 N.J. 526 (1976), to extend the statutory 20-day signature verification period, and the application on behalf of the borough clerk was denied. The borough attorney thereupon elected to withdraw filing of his proffered complaint.

On December 6, 1979 plaintiffs obtained an order requiring defendants to show cause why they should not be compelled to provide for submission of the referendum question to the voters of Fair Lawn pursuant to N.J.S.A. 40:69A-20.*fn3 On the same day, December 6, the borough clerk addressed a letter to the mayor and council, declaring the petitions, in general terms

(contrary to the specific reasons required by the statute), insufficient.*fn4

This series of events, could well have, on plaintiffs' December 6 application, resulted in the petitions theretofore filed having been deemed timely on November 23, 1979 under the statute for failure of the clerk to act before expiration of the 20 days. Nevertheless, the court declined to so order, and held a plenary hearing as to the sufficiency of the petitions and the borough clerk's actions, Stone v. Wyckoff , 102 N.J. Super. 26, 34 (App.Div.1968), certif. den. 52 N.J. 254 (1968), in order to provide a factual record in the absence of any clear statutory mandate or appellate decisional authority indicating that the preferable or required course was to immediately order the question placed on the ballot.

On December 11, 1979 petitioners sought to remedy some of the alleged deficiencies (see N.J.S.A. 40:69A-188). And, on December 17, 1979, additional and supplemental signatures were submitted. It was stipulated that the borough clerk had refused to allow access on December 11 (or any other date) to the previously filed petitions for corrections or additions in an attempt to remedy certain deficiencies, including some relating

to incomplete or improper notarization. Compare N.J.S.A. 40:69A-188 and N.J.S.A. 19:23-20.

On January 2, 1980, the adjourned date of the order to show cause, the court began hearing testimony over the course of six days as to the alleged insufficiency of the petitions. On January 18, 1980 the court ruled that the petitions submitted contained a sufficient number of valid signatures and complied with N.J.S.A. 40:69A-19.*fn5 In accordance with its oral opinion of that date the court ordered that a referendum election be held on a date to be set by the borough clerk within the time frame provided by statute. Thereafter, and without setting a date for an election, defendants appealed ...

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