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Baker v. Deane

Decided: September 21, 1983.

KEVIN R. BAKER, ET ALS, PLAINTIFFS,
v.
ADELAIDE DEANE, ET AL., DEFENDANTS. AND MICHAEL J. MATTHEWS, PLAINTIFF, V. ADELAIDE DEANE, DEFENDANT. JAMES W. MASLAND III, ET AL., ETC. PLAINTIFF-INTERVENORS, V. MICHAEL J. MATTHEWS, ETC., PLAINTIFF, V. ADELAIDE DEANE, ETC., DEFENDANT



Gruccio, A.j.s.c.

Gruccio

[196 NJSuper Page 418] The present controversy revolves around efforts by citizens of Atlantic City to effect the recall of Mayor Michael Matthews. Matthews was elected Mayor of Atlantic City on June 15, 1982

and was sworn into office on July 1, 1982. In March 1983 petitions were circulated seeking support for the recall of Matthews. By June 30, 1983, 1913 signatures were collected endorsing the recall. On August 10, 1983 plaintiff-intervenors filed 964 pages of a petition containing approximately 9000 signatures with defendant Adelaide Deane, the Atlantic City Clerk. On September 1, 1983 after examining the petitions the clerk determined there were 4760 valid signatures. This figure fell short of the 6257 signatures needed to put the recall petition on the ballot. September 1, 1983 was also the date on which plaintiff-intervenors filed an additional 515 pages of the petition containing 4043 signatures.

On September 7, 1983 defendant Deane certified 2173 of the 4043 additional signatures as valid while at the same time reducing the original number of signatures certified on September 1, 1983 from 4760 to 4663. The net result is that 6836 signatures on the recall petition have been certified as valid, exceeding the number of signatures necessary to put the recall question on the ballot by 579 signatures. This factual analysis is taken from the stipulation of facts outlined at a pretrial conference on September 19, 1982.

Cross motions for summary judgment have now been filed with respect to two issues; first, whether signatures collected prior to the mayor completing his first year in office are valid, and second, whether signatures of voters who registered to vote after the original petition was filed but prior to the filing of the amended petition on September 1, 1983 are valid signatures. Both issues are severable from others in the case and require resolution before the remaining factual issues can be adequately addressed.*fn1 Not only will the determination made in this opinion materially affect the remaining issues, it could render them moot. That fact, coupled with an overriding public

interest in the petition for recall, warrants the conclusion that there is no just reason for delay. Accordingly, the judgment about to be made will be certified as final pursuant to R. 4:42-2. See Leonardis v. Bunnell, 164 N.J. Super. 338 (App.Div.1978), certif. den. 81 N.J. 265 (1979).

SIGNATURES OF A RECALL PETITION WHICH ARE OBTAINED DURING THE FIRST YEAR OF A MUNICIPAL ELECTIVE OFFICER'S TERM OF OFFICE ARE VALID AND NOT IN VIOLATION OF N.J.S.A. 40:69A-168.

The first question, whether the circulation of recall petitions and the collection of signatures prior to the mayor having served one complete year of his four-year term of office is violative of N.J.S.A. 40:69A-168, is an issue of first impression in this State. Section 168 permits the filing of petitions to recall an elected official only after the completion of one year in office. A finding by the court that signatures collected prior to July 1, 1983 are invalid would result in the elimination of 1913 signatures from the petition, leaving 4923 certified signatures, 1334 short of the required number.

Resolution of the issue hinges on the interpretation of N.J.S.A. 40:69A-168. The court is of the opinion that the one-year time limitation contained in N.J.S.A. 40:69A-168 is limited in its application to the filing of petitions, not the circulation of petitions. A thorough examination of New Jersey case law as well as the case law of other jurisdictions has revealed no reported decision dealing with the issue presented.*fn2 Resort to the basic principles of statutory construction is thus in order.

Instructive in determining statutory construction in New Jersey is Dvorkin v. Dover Tp., 29 N.J. 303 (1959), which provides:

A return to the first principles of statutory interpretation teaches that when the lawgiver's intent is in doubt, the court 'ought to interpret the law to be what is most consonant to equity and least inconvenient.' Kerlin's Lessee v. Bull, 1 Dall. 175, 1 U.S. 175, 1 L. Ed. 88 (Sup.Ct.Pa.1786); Associates of Jersey Co. v. Davison, 29 N.J.L. 415, 424 (E. & A. 1860). This is the doctrine of 'equity of the statute. . . .' [at 315]

Specifically, initiative and referendum processes authorized by the Faulkner Act are to be liberally construed subject to governing constitutional and statutory provisions. Sparta Tp. v. Spillane, 125 N.J. Super. 519, 523 (App.Div.1973), certif. den 64 N.J. 493 (1974), citing 5 McQuillen, Municipal Corporations, (1969), § 16.48 at 199-200, § 16.50. A liberal construction is necessary in order to satisfy the Faulkner Act purpose of encouraging "public participation in municipal affairs in the face of normal apathy and lethargy in such matters." Ibid. Additionally, a liberal interpretation of election statutes is necessary "to effectuate their purposes and to facilitate and not to hamper the exercise by voters of the rights thereby granted to them." ...


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