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Errichetti v. Merlino

Decided: December 2, 1982.


Lenox, A.j.s.c.


[188 NJSuper Page 312] Plaintiff Angelo J. Errichetti contends, by action in lieu of prerogative writs, R. 4:69, that he has been unlawfully deprived of his seat in the New Jersey State Senate, his annual salary and the other emoluments of his elective office. He originally

sought judgment restoring his office, salary and privileges, and declaring unconstitutional the actions of those ordering the deprivations and the statutes on the basis of which the actions were taken. Since his term of office has now expired the demand for restoration of his office and privileges is moot.

At issue now is plaintiff's right to payment of his salary for the period January 1, 1981 through January 12, 1982, ordered withheld by defendant Joseph Merlino, then President of the Senate. He seeks a declaration that during this period he was a duly elected member of the New Jersey State Senate. This contention gives rise to the issues of the constitutional validity of N.J.S.A. 19:3-25 and N.J.S.A. 2C:51-2 under which defendants contend plaintiff's Senate seat was vacated and forfeited. Because of the challenge to the constitutionality of the statutes, by order dated May 19, 1982, the Attorney General of New Jersey was granted leave to intervene as an interested party. R. 4:28-4(d). Cross-motions for summary judgment have been filed and argued. There is no genuine issue of material fact and resolution of the legal issues advanced will determine the controversy. R. 4:46-2. Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954).

Plaintiff was elected to membership in the New Jersey State Senate at a special election in the Fifth Legislative District on November 2, 1976. He has at all times met the age, citizenship, residence and suffrage requirements for membership. N.J. Const. (1947), Art. IV, § I, par. 2. He was seated and served the term for which he was elected. He was a successful candidate at the general election on November 8, 1977, and was re-elected to a four-year term expiring on January 12, 1982. At the commencement of the legislative session in January 1978, he was again seated as a Senator for the Fifth Legislative District.

During this session, in June 1980, he was indicted with other defendants for federal criminal offenses by a United States grand jury in the first of what has become known as the "Abscam" cases. At a trial of the indictment to a jury in the

United States District Court for the Eastern District of New York a verdict of guilty was recorded on August 29, 1980. The criminal violations alleged in the indictment of which he was convicted are crimes encompassed by the forfeiture of office provision of N.J.S.A. 2C:51-2.

Presumably because of his preoccupation with the indictment, trial, sentence and appeal from the judgment of conviction, plaintiff did not attend sessions of the Senate. Prior to the jury verdict he attended a session on July 28, 1980, but thereafter was continuously absent without excuse until the expiration of his term of office. Among the sessions he did not attend were ten consecutive sessions commencing with that held on July 31, 1980 and inclusive of the session conducted on December 11, 1980.

Four months after the return of the jury verdict Senate President Joseph Merlino on January 1, 1981 ordered the annual salary and the office and staff allowances payable by law to plaintiff be withheld. At that time no formal action had been taken by the Senate to expel plaintiff from his seat. Although he demanded his salary in monthly installments, no payments have been made. The order of the President of the Senate was made without prior notice to plaintiff of his intention to do so or of the reason for his action, and no opportunity was afforded plaintiff to be heard in opposition to it.

A judgment of conviction and sentence was entered in the United States District Court for the Eastern District of New York on August 13, 1981. The sentence included a term of imprisonment and a fine, but the execution of the sentence was stayed pending a decision by the United States Circuit Court of Appeals on an appeal filed by plaintiff. The judgment of conviction was affirmed, but a petition for rehearing en banc is pending.

Plaintiff has never resigned his office nor has he been officially advised of his removal therefrom. No action by the Senate to expel plaintiff by concurrence of two-thirds of all its members

has been taken pursuant to N.J. Const. (1947), Art. IV, § IV, par. 3. No vacancy in office was declared. Neither did the Senate direct the issuance nor the Governor issue a writ of election to file a vacancy. N.J. Const. (1947), Art. IV, § IV, par. 1.

The present verified complaint, filed on November 16, 1981, is plaintiff's first contention that he was never validly removed from his seat in the New Jersey State Senate. He challenges the constitutional integrity of N.J.S.A. 19:3-25 providing that the office of a member of the Senate or General Assembly shall be deemed vacant if he shall be absent unremittingly for ten days during any session unless excused from attendance, and N.J.S.A. 2C:51-2 providing for the forfeiture of public office when the office holder is convicted of a crime. They are unconstitutional, he argues, because they establish additional qualifications for office beyond those stated in N.J. Const. (1947), Art. IV, § I, par. 2, and because they provide a method for removal from office other than the exclusive means authorized by N.J. Const. (1947), Art. IV, § IV, par. 3. He contends, further, that if the statutes do not offend the foregoing provisions, they are otherwise unconstitutional as denying to a Senator holding office due process of law in declaring his office vacant or forfeited without prior notice of the action to be taken and an opportunity to be heard thereon.

The parties concede that unless plaintiff's elected office was constitutionally vacated pursuant to N.J.S.A. 19:3-25 or forfeited pursuant to N.J.S.A. 2C:51-2 he is entitled to judgment. However, defendants do not assert that the actions of Senate President Merlino on January 1, 1981 constituted a procedural removal of plaintiff from office. Rather, they allege it merely confirmed what had already occurred. Senator Merlino did not specify whether his action was based upon one, the other or both of the statutes. At that time plaintiff had failed to attend ten consecutive meetings of the Senate and the jury verdict of guilty had been rendered. The sentence and judgment of conviction, however, had not been entered. N.J.S.A. 2C:51-2(b)

provides that the forfeiture shall occur upon sentencing unless the court has ordered it to occur upon the finding of guilt by the jury. Therefore, if plaintiff did not vacate his office pursuant to N.J.S.A. 19:3-25 but did forfeit his office by reason of his criminal conviction, he would be entitled to judgment for the amount of his salary from January 1 to August 13, 1981, the date of his sentence, notwithstanding the order of Senator Merlino.

No objection has been interposed to the jurisdiction of the judiciary to rule upon this dispute involving the internal affairs of a legislative body. However, in view of the respectful nature of the relationship between the coordinate branches of government, it is appropriate to note the existence of this right. The United States Supreme Court addressed this issue in Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1881), stating:

Especially is it competent and proper for this court to consider whether its [the legislature's] proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not to treat their acts as null and void. [103 U.S. at 199, 26 L. Ed. at 390]

See, also, Gewertz v. Jackman, 467 F. Supp. 1047 (D.N.J.1979); Reilly v. Ozzard, 33 N.J. 529, 536 (1960); Wilentz ex rel. Golat v. Stanger, 129 N.J.L. 606 (E. & A.1943); State v. Wrightson, 56 N.J.L. 126 (Sup.Ct.1893).

The legislative power of removal from office is inherently political. The right is universally controlled by constitutional and legislative provisions, and in the absence of constitutional prohibition rests with the Legislature. Without such power the conduct of the affairs of government would be impaired by the inability to summarily remove from office one who during his term became incompetent or unfit to perform his official duties. Plaintiff's contentions must be viewed in this light. The constitutional prescription for membership, he argues, is exclusive, and a legislative provision imposing an additional requirement

for obtaining or holding office is impermissible. If correct, this means that an elected Senator may during his term be convicted of any number of crimes no matter how heinous, never attend a legislative session and remain in office unless expelled by the vote of two-thirds of all the members of the Senate.

The constitutional validity of N.J.S.A. 19:3-25 will be considered first, since a determination favoring constitutionality will render moot the challenge to the other statute. The Legislative Article of the Constitution provides only age, citizenship, residency and suffrage requirements for membership in the Senate. N.J. Const. (1947), Art. IV, § I, par. 2. The Constitution further provides that annual compensation shall be paid to members of the Senate "during the term for which they shall have been elected and while they shall hold their office," N.J. Const. (1947), Art. IV, § IV, par. 7; that each house of the Legislature is "the judge of elections, returns and qualifications of its own members," N.J. Const. (1947), Art. IV, § IV, par. 2; that expulsion of a member shall be "with the concurrence of two-thirds of all its members," N.J. Const. (1947), Art. IV, § IV, par. 3, and that "any vacancy in the Legislature occasioned by death, resignation or otherwise shall be filled by election for the unexpired term. . . ." N.J. Const. (1947), Art. IV, § IV, par. 1. Relying upon Imbrie v. Marsh, 3 N.J. 578 (1950), plaintiff advances his argument that these provisions are exclusive and prohibit further requirements for holding office or procedures for removal.

The relevant portion of N.J.S.A. 19:3-25 provides:

When a person who shall be elected a member of the senate . . . of this state . . . shall during any session of such house be absent unremittingly for ten days, unless expressly excused by such house from attendance thereon . . . his office shall be deemed vacant.

Concisely stated, plaintiff contends this statute imposes an attendance requirement not expressly or impliedly found in the Constitution. He views this as an unauthorized eligibility qualification, but asserts further that if intended only to afford the Senate the right to expel a member for its violation, it is equally

unauthorized under the Constitution which provides the sole method for removal from office.

N.J.S.A. 19:3-25 requires no construction. Words in a statute should be given their plain meaning and interpreted to afford a sensible result. Thomas v. Sosa, 172 N.J. Super. 146 (Law Div.1979); Mulcahy v. Bergen Cty. Election Bd., 156 N.J. Super. 429 (Law Div.1978). When the language is plain, there is no need for interpretation, Lopez v. Santiago, 125 N.J. Super. 268 (App.Div.1973); State v. Davis, 175 N.J. Super. 130 (App.Div.1980), absent explicit indication of a special meaning. Fahey v. Jersey City, 52 N.J. 103 (1968).

The sense and plain meaning of N.J.S.A. 19:3-25, when applied to the undisputed facts, is that plaintiff vacated his office on December 11, 1980 upon his tenth absence from meetings of the Senate. The statutory language "deemed vacant" has no other import, significance or purpose. This controversy has therefore focused upon the integrity of the statute rather than its effect. While further will be said regarding its interpretation, the statute is self-executing and the intent is that there be an automatic expulsion from office.

It is appropriate to consider first the issue of whether the statute is unconstitutional as establishing an added qualification for office beyond those in the Constitution relating to age, citizenship, residency and suffrage. Plaintiff at all times met those qualifications. Citing Imbrie v. Marsh, supra, plaintiff contends that the specifically established eligibility requirements for office are exclusive and the Legislature has no power to require additional or different qualifications. Imbrie involved a statute requiring of an office holder an oath different from and in addition to that in the Constitution. The Supreme Court found the constitutional oath was exclusive and the statute invalid. Referring to earlier authority for the proposition the court stated:

The maxim expressio unius est exclusio alterius is peculiarly applicable here. Such has been the current not only of the decisions of this State and elsewhere but of the authorities on public law. "Where the constitution prescribes the

manner in which an officer shall be appointed or elected, the constitutional prescription is exclusive and it is not competent for the legislature to provide another mode of obtaining or holding the office." Johnson v. State, 59 N.J.L. 535, 536 (E. & A.1896). [3 N.J. at 585]

On the basis of the maxim expressio unius est exclusio alterius our courts have consistently so held. See Annotation, "Powers of Legislature to proscribe qualifications for or conditions of eligibility to constitutional office," 47 A.L.R. 481 (1927).

Defendants urge that the qualifications in N.J. Const. (1947), Art. IV, § I, par. 2, are minimum only and not intended to exclude establishment by the Legislature of others. It is their position that the Constitution does not expressly prohibit the enactment of this statute, and in view of the absence of the requisite clear and compelling implication of such prohibition plaintiff has failed to carry the heavy burden of establishing unconstitutionality. Defendants recite requirements for membership found elsewhere in the Constitution as evidence of nonexclusivity. They refer to Reilly v. Ozzard, supra, as the basis for distinguishing Imbrie, supra, from the case at bar, positing that Imbrie does not hold that a statute which adds to but does not alter the constitutional qualifications is prohibited and that the other cases cited in Imbrie are likewise distinguishable. Thus they urge that plaintiff's interpretation is contrary to the plain meaning of the Constitution and the long history of legislative enactments establishing additional qualifications for holding legislative office.

Assignment Judge O'Brien of Hudson County recently considered this issue in State v. Musto, 187 N.J. Super. 264 (Law Div.1982). The opinion contains a comprehensive and scholarly discourse of the arguments and authorities on each side. It is exhaustive and further discussion would be merely repetitious. The determination of Judge O'Brien is appropriate for adoption in this case. He found it unnecessary to decide the question since the constitutional provisions regarding qualifications for election to office are immaterial to the issue of the constitutionality of a statutory expulsion from office. In this connection he said:

It isn't necessary for the court to determine whether N.J.S.A. 2C:51-2(c) constitutes an added qualification for a constitutional officer, i.e., that he not have been convicted of a crime. This case is not an attempt to exclude Musto from assuming a Senate seat. He was a sitting senator at the time of his conviction and sentencing. In Powell v. McCormack, 395 U.S. 486 [89 S. Ct. 1944, 23 L. Ed. 2d 491] (1969), the court noted the distinction between exclusion and expulsion. As Justice Douglas said in his concurring opinion:

And if this were an expulsion case I would think that no justiciable controversy would be presented, the vote of the House being two-thirds or more. But it is not an expulsion case. Whether it could have been won as an expulsion case no one knows. Expulsion for 'misconduct' may well raise different questions, different considerations. Policing the conduct of members, a recurring problem in the Senate and House as well, is quite different from the initial decision whether an elected official should be seated. It well might be easier to bar admission than to expel one already seated. [395 U.S. 486, at 555, 89 S. Ct. 1944 at 1981, 23 L. Ed. 2d 491]

While this portion of Judge O'Brien's opinion related to N.J.S.A. 2C:51-2 rather than N.J.S.A. 19:3-25, the difference is without significance. The question presented with regard to both statutes is not the right to be elected to office but whether the Legislature may prescribe reasonable standards for expulsion. As stated by Vanderbilt, C.J., plaintiff "paint(s) with too broad a brush," Strothers v. Martini, 6 N.J. 560, 563 (1951), for he has failed to recognize this distinction.

This case presents no issue regarding exclusion of plaintiff from being sworn as a member of the Senate. N.J.S.A. 19:3-25 does not establish a qualification for office but relates to the duties and responsibilities of a Legislator after assuming his office. This distinction is well established and is dispositive of plaintiff's arguments premised upon Imbrie v. Marsh, supra, and the cases cited therein involving statutes adding to qualifications to assume rather than continue in office, and Bond v. Floyd, 385 U.S. 116, 87 S. Ct. 339, 17 L. Ed. 2d 235 (1966), upon which plaintiff also relies. It is inappropriate to "undertake to resolve a constitutional challenge if the litigation may be disposed of without reaching the fundamental issue. . . ." State v. Salerno, 27 N.J. 289, 296 (1958); Ahto v. Weaver, 39 N.J. 418 (1963); State v. Zucconi, 50 N.J. 361 (1967).

The next issue, one of fundamental significance, is whether the application of N.J.S.A. 19:3-25 to a member of the State Senate is invalid because the Constitution prescribes the exclusive method by which a member's right to remain in office may be terminated. In this respect N.J. Const. (1947), Art. IV, § IV, par. 2, provides:

Each house shall choose its own officers, determine the rules of its proceedings, and punish its members for disorderly behavior. It may expel a member with the concurrence of two-thirds of all its members.

The power of removal, plaintiff contends, is exclusively vested by the Constitution in each house of the Legislature. Plaintiff's view is that a bar to such legislation arises by negative implication found in the constitutional language. Concededly, the statute contravenes no affirmative prohibition. There is no express statement that ...

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