This is a motion for summary judgment by defendant. I must, therefore, assume the following facts as presented by plaintiff to be true.
On March 23, 1982 defendant Dwight Mitchell filed his "candidate's request for designation on ballot" with the Orange City Clerk for the May 11, 1982 election of East Ward Councilman. Defendant listed as his residence 66 Hillyer Street, Orange, "since January 1981."
On April 8, 1982 plaintiff Ben Jones the incumbent and a resident of the East Ward of Orange, wrote the city clerk, through counsel, contesting defendant's residency. Plaintiff stated defendant was in fact a resident of Irvington within the 12-month period prior to the upcoming election and, as such, was in violation of N.J.S.A. 40A:9-1.13. That statute provides:
. . . any candidate for elective office must be a resident of the local unit to which the office pertains for at least 1 year immediately prior to the date the election is to be held. . . .
An investigation was requested.
By letter dated April 12, 1982 the Orange City Clerk referred plaintiff's claim to the Commissioner of Registration and Superintendent of Elections for investigation. The Commissioner responded on April 20, 1982 that a residency question was a matter for the city clerk's office and legal counsel to decide. The city clerk then wrote plaintiff on April 29, 1982 advising him that "after proper review by Legislative Counsel to the Municipal Council . . . there is insufficient documentation to preclude the candidacy of [defendant] Mr. Dwight Mitchell." On May 11, 1982 defendant was elected councilman of the East Ward of Orange.
On October 22, 1982, about five months later, plaintiff filed a complaint in lieu of prerogative writs demanding defendant be removed from office. Plaintiff contended that each day defendant serves as councilman represents a continuing violation of the residency requirement.
Defendant contends that plaintiff's complaint is an election law matter barred by N.J.S.A. 19:29-3. That statute, with certain exceptions which are not applicable here, prohibits challenges of election results more than 30 days after the date of an election.
The issue to be decided is whether this challenge to a city councilman's residency is governed by the rules of court regarding actions in lieu of prerogative writs or by the election laws of Title 19.
Plaintiff argues that the circumstances of Alongi v. Schatzman, 57 N.J. 564 (1974), apply. There the qualifications of a candidate for tax assessor were contested prior to the election. It was alleged that one of the candidates did not possess the required ...