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Highton v. Musto

Decided: June 23, 1982.


O'Brien, A.j.s.c.


This is a suit by a defeated candidate in a municipal election. The coplaintiff is a registered voter in that municipality. Defendant William Musto was one of the successful candidates.

On March 26, 1982 Musto was convicted of a series of federal offenses in the United States District Court. On May 10, 1982 he was sentenced upon those convictions. This court has concluded, in a decision rendered on June 16, 1982, that Musto was disqualified from holding any office or position of honor, trust or profit by virtue of those convictions, pursuant to N.J.S.A. 2C:51-2(c). It further concluded that by reason of this disqualification he can not assume the office of commissioner and a vacancy resulted.

This case presents the question as to the appropriate method for filling that vacancy.

The City of Union City is governed by the commission form of government as authorized by N.J.S.A. 40:70-1 et seq. On May 11, 1982 a regular municipal election was held to select five commissioners for four-year terms commencing July 1, 1982, pursuant to N.J.S.A. 40:75-2, as amended by L. 1981, c. 379. Musto was one of the five highest vote getters. Plaintiff Highton was the sixth highest vote getter.

Highton contends that since Musto is disqualified from holding the office of commissioner, and was so disqualified prior to the date of the election, Highton should be considered as among the top five highest vote getters. In other words, Highton contends that the election of Musto should be considered a

nullity and the votes cast for him be treated as void or thrown away, which would result in Highton being one of the five highest vote getters. N.J.S.A. 40:75-23, repealed and replaced by L. 1981, c. 379, § 13.

It is the general rule that votes cast for a deceased, disqualified or ineligible person are not to be treated as void or thrown away, but are to be counted in determining the results of the election as regards the other candidates. 133 A.L.R. 319, 320. This rule has been followed in New Jersey, Chandler v. Wortman, 6 N.J.L.J. 301 (1883); In re Keogh-Dwyer, 106 N.J. Super. 567, 574 (Law Div.1969), aff'd 54 N.J. 523 (1969), in which the annotation 133 A.L.R. 319 was cited with approval.

Plaintiff refers to N.J.S.A. 19:3-4, which provides:

At every election the person or persons, to the number to be elected therein, who shall by law be qualified for the office or offices to be filled at such election, and for whom the greatest number of votes shall have been given therein for such office or offices, shall be deemed and taken to be elected to such office or offices.

He argues that he should be considered among the top five "qualified" vote getters. He agrees that this section applies "only in so far as the provisions . . . are not inconsistent" with other statutory provisions relating to elections in specific municipalities. See N.J.S.A. 19:1-2.

N.J.S.A. 40:75-23 provided:

The number of candidates equal to the number of places to be filled, receiving the highest number of votes, shall be elected as commissioners.

This section was repealed by L. 1981, c. 379. Section 13 thereof reads as follows:

At the regular municipal election in any municipality which has adopted this act, the candidates receiving the greatest number of votes cast shall be elected to the respective offices. The term of office of any officer elected pursuant to this act shall begin on July 1 next following election.

Union City has not adopted the run-off provisions of §§ 14 and 15 by the referendum provided in § 17.

It is noted that the phrase "who shall by law be qualified" has been omitted from N.J.S.A. 40:75-23, as well as from L. 1981, c. 379, § 13. While it may, of course, be presumed that those elected shall be qualified, any argument based upon the specific

language of N.J.S.A. 19:3-4 is weakened by its inconsistency with the specific statutes referring to elections in Walsh Act communities.

Highton argues that Musto's disqualification existed on the day of the election and prior thereto. This court has so ruled in State v. Musto, consolidated with Musto v. Orechio, 187 N.J. Super. 264. Highton further argues that in In re Keogh-Dwyer, supra, Judge Fritz observed that no effort was made to remove the deceased candidate's name from the ballot prior to the election. He points out that this very suit was originally instituted on May points out that this very suit was originally instituted on May 10, 1982, seeking to remove Musto's name from the ballot in view of his having been sentenced on his federal convictions that day. This court denied that application as coming too late.

While application to remove Musto's name from the ballot might have been made on March 26, 1982, the date of his convictions, Highton contends that he waited until Musto's motion for a new trial was decided. This occurred on May 6, 1982, yet the application was not filed until May 10, 1982, the date of sentencing.

During a brief hearing it was noted that although it was physically possible to remove Musto's name from the ballot, it would involve a great deal of difficulty. Furthermore, absentee ballots and sample ballots had already been sent out containing Musto's name. The court based its conclusion upon the reasoning of In re Keogh-Dwyer, supra, that after a certain time "the ballot is immutable. Deletions, additions and substitutions are not possible." Further it recognized Musto's challenge to the constitutionality of N.J.S.A. 2C:51-2(a) and (c). The court reasoned that removal of a candidate's name at this eleventh hour, with it remaining on absentee and sample ballots, would create confusion. Furthermore, if the candidate's challenge to the statute upon which his disqualification was premised was successful, the damage to the election would be irremediable. On the contrary, if unsuccessful, as in fact it was, we would have

the benefit of the vote of the electorate to which may be applied the appropriate principles of law in determining the proper method of filling the vacancy thereby created.

Plaintiff Highton relies upon Alongi v. Schatzman, 57 N.J. 564 (1971). In that case the court dealt with a candidate who was disqualified because he lacked the education which was a statutory qualification for the position of municipal tax assessor. Plaintiff possessed those qualifications, his opponent Shaluha did not. Suit was brought to remove Shaluha from the ballot because of his lack of qualification. The Law Division ruled in plaintiff's favor and directed that Shalula's name be removed. This decision was reversed by the Appellate Division with one judge dissenting. The election was held and Shaluha was ...

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