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Eisenberg v. Committee to Recall Levin

Decided: May 9, 1980.

BEATRICE EISENBERG, CLERK OF THE BOROUGH OF WOODBINE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
THE COMMITTEE TO RECALL LEVIN (ROBERT T. BENNER, CHAIRMAN) AND THOMAS LEVIN, MAYOR OF THE BOROUGH OF WOODBINE, DEFENDANTS



Staller, J.s.c.

Staller

[175 NJSuper Page 116] Beatrice Eisenberg, plaintiff in this action for declaratory judgment, is the Clerk of the Borough of Woodbine. She brings this action to determine whether she must conduct a recall election as demanded by codefendant Committee to Recall Levin (hereinafter Committee). Thomas Levin is the mayor of Woodbine, the subject of the petition for a recall election and a codefendant in this action.

The Borough of Woodbine was incorporated by an act of the Legislature in 1903 pursuant to the Borough Act, N.J.S.A. 40:86-1 et seq. , which remains in force today, providing essentially the same form of borough government as it did when enacted in 1897. The current question arises because the Borough Act contains no provision for the recall of elective officials while that right is available under other forms of municipal government. Despite some 83 years since the enactment of the Borough Act, and its continued use in 222 municipalities, Forms of Municipal Government in New Jersey: A Report of the County & Municipal Study Commission , 35 (Jan. 1979), there are no reported cases deciding this issue.

The first argument presented by the Committee is that N.J.Const. (1947), Art. I, par. 2, guarantees the right of recall to all citizens of the State of New Jersey. This provision reads as follows:

All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it.

While it may be argued that the removal of an elective official is a minimal form of alteration or reformation of government, and is thus guaranteed by Art. I, par. 2, our Supreme Court has expressly held that there is no constitutional right to recall office holders. Roman v. Sharper , 53 N.J. 338 (1969); Leers v. Diehl 11 N.J.Misc. 525, 167 A. 216 (Sup.Ct.1933). See, also, In re Petition of Smith , 114 N.J. Super. 421, 435 (App.Div.1971). These decisions are binding upon this court and the Committee's argument in this regard must fail.

The Committee next argues that the Borough Act is unconstitutional in that by failing to provide for the recall of elected borough officials the statute denies the borough citizens equal protection of the law, in violation of the Fourteenth Amendment of the United States Constitution. As indicated above, this argument is based on the fact that the right to recall has not been provided for borough citizens while it has been provided for in municipalities operating under other forms of municipal government. N.J.S.A. 40:70-1 et seq. (1911, the Walsh Act);

N.J.S.A. 40:79-1 et seq. (1923, the Municipal Manager Form of Government Law); N.J.S.A. 40:69A-1 et seq. (1950, the Faulkner Act). Related to this equal protection argument is the Committee's final contention, that the recall provisions of the Faulkner Act, N.J.S.A. 40:69A-168 et seq. , should be applied in this instance and a recall election held. Apparently, the Committee contends that the recall provisions of the Faulkner Act impliedly amended the Borough Act, as well as other still viable 19th Century statutes which created various forms of municipal government but which provided no express right to recall. (City form of government, N.J.S.A. 40:103-1 et seq. (1889); town form of government, N.J.S.A. 40:123-1 et seq. (1895); township form of government, N.J.S.A. 40:142-1 et seq. (1899); village form of government, N.J.S.A. 40:157-1 et seq. (1891)). Indeed, the petition for recall which was presented to Mrs. Eisenberg was apparently in conformity with the recall provisions of the Faulkner Act, N.J.S.A. 40:69A-168 et seq., i.e. , the recall petition contained the signatures of 25% of the registered voters of Woodbine, and alleged, correctly, that Thomas Levin has been the mayor for a period in excess of one year.

For the reasons which will be discussed below, it is the holding of this court that the lack of a recall provision in the Borough Act does not result in a denial of equal protection of the law. Further, this court finds that the recall provisions of the Faulkner Act, N.J.S.A. 40:69A-168 et seq. , may be utilized only by citizens of municipalities that have adopted one of the optional municipal charters provided by that act. These holdings will be discussed in reverse order.

At first glance, the broad wording of the principal recall provision of the Faulkner Act, N.J.S.A. 40:69A-168, may lead one to believe that the Legislature intended that the right to recall should exist in every municipality within the State:

Any elective officer shall be subject to removal from office for cause connected with his office, after he has served at least one year, upon the filing of a recall petition and the affirmative vote of a majority of those voting on the question of removal at any general, regular municipal or special election.

However, this provision (following provisions for 16 optional plans of government) is contained in ...


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